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23 V.S.A. § 1201

The legal limit for driving under the influence (DUI) in Vermont is a Blood Alcohol Content (BAC) of 0.08. A person with a BAC at or above this limit is considered legally impaired and may be charged under the statute for operating a motor vehicle. A BAC of greater than 0.08, however, is not the only way to be charged under the statute. You may also be charged with a DUI if you are found to be under the influence of drugs (including valid prescriptions), the combination of drugs and alcohol, or for a BAC lower than 0.08 if a law enforcement officer determines you to be incapable of driving safely. Be aware, some prescription drugs may alter your ability to drive and the fact that you have a valid prescription is not a defense to driving under the influence.

DUI Defenses:

In order to convict you of driving under the influence, the State is required to show that you were intoxicated at the time you were operating your vehicle. The State typically has two types of evidence against you.  The first is your performance on field sobriety tests.  The second is your blood alcohol content (BAC) as measured either by a breath or blood sample.  There are several ways to challenge the admissibility and accuracy of the State’s evidence.  An experienced DUI attorney can uncover where the State will have problems using this evidence against you.

Blood Alcohol Results

The results of the BAC test may be challenged in several ways.  At the police station, you are entitled to a second test upon being told the results of your first test if the first test was above 0.08.  If you are denied this opportunity for a second test, the possibility exists to have your Civil DUI case dismissed.  Additionally, if the breath analyzer gives an error or simulator out of range message, these are grounds for challenging the admissibility of the BAC evidence.

The police are also required to give you a list of facilities where you can have your blood tested and a blood sample kit at the time of processing and release.  If you have the independent test performed, only disclose the results of the test with your attorney.  The State is not entitled to know if you took an independent test unless you want to use those results.  If your independent test shows that your BAC is below the legal limit, or substantially different from the results of the breath sample, that information may be used to improve your case.

Unlawful Stops by Law Enforcement

Both the United States and Vermont Constitutions protect your right to be free of unreasonable searches and seizures.  In the DUI context, this prevents law enforcement from stopping you without a reasonable and articulable suspicion that a crime is being committed or that a traffic violation has occurred.  If law enforcement does not have a proper reason for stopping you or ordering you out of your vehicle for field sobriety exercises, the evidence gathered as a result may be suppressed.  Suppressed evidence cannot be used against you in court and will weaken the State’s case.

Expert Witness Testimony

In many cases the State’s evidence may need to be challenged via the use of an expert witness.  In cases where the State relies on the results of the breath or blood test to determine the driver’s BAC at the time of operation, the expert testimony of an expert toxicologist may aid your defense.  It is important that your attorney understand the nuances of every case and whether an expert witness will help your DUI defense.

Field Sobriety Tests

Field Sobriety tests are used by the police in order to establish probable cause for an arrest, and to gather evidence that can be used against you in court.  There are a number of field sobriety tests that the police may use.  An experienced DUI attorney can challenge the validity of the results in court by cross-examination of the law enforcement officer.

DUI Penalties

Penalties for a conviction for DUI include both criminal and civil penalties. If you have been charged with a DUI, you must be aware of both in order to protect your rights.

DUI Criminal Penalties:

The criminal penalties for DUI are outlined in 23 VSA §1201.

  • First Offense: A fine of not more than $750, or imprisoned not more than two years, or both.
  • Second Offense: A fine of not more than $1,500, or imprisoned not more than two years, or both. At least 200 hours of community service shall be performed, or 60 consecutive hours of the sentence of imprisonment shall be served and may not be suspended or deferred or served as a supervised sentence, except that credit for a sentence of imprisonment may be received for time served in a residential alcohol facility pursuant to sentence if the program is successfully completed.
  • Third Offense: A fine of not more than $2,500, or imprisoned not more than five years, or both. At least 96 consecutive hours of the sentence of imprisonment shall be served and may not be suspended or deferred or served as a supervised sentence, except that credit for a sentence of imprisonment may be received for time served in a residential alcohol facility pursuant to sentence if the program is successfully completed. The court may impose a sentence that does not include a term of imprisonment or that does not require that the 96 hours of imprisonment be served consecutively only if the court makes written findings on the record that such a sentence will serve the interests of justice and public safety.
  • Fourth or Subsequent Offense: A fine of not more than $5,000, or imprisoned not more than ten years, or both. At least 192 consecutive hours of the sentence of imprisonment shall be served and may not be suspended or deferred or served as a supervised sentence, except that credit for a sentence of imprisonment may be received for time served in a residential alcohol treatment facility pursuant to sentence if the program is successfully completed. The court shall not impose a sentence that does not include a term of imprisonment unless the court makes written findings on the record that there are compelling reasons why such a sentence will serve the interests of justice and public safety.

Additional enhanced penalties may also be charged if your BAC is greater than 0.16, injury or death results from an accident involving DUI, or if you have minor children in the car at the time of the offense. Every case is unique and you should seek legal advice prior to making any statements to the police or accepting any plea offers from the state’s attorney’s office.

DUI Civil Penalties:

In addition to the criminal penalties for DUI, civil penalties are outlined in 23 VSA §1205. If you have been cited for a DUI in Vermont, you should have received a notice of suspension from the arresting officer. This form is usually white and is labeled “Form 240” in the upper left hand corner. In order to challenge the suspension of your driver’s license by the DMV, you must return this form to the commissioner of motor vehicles and inform them of your intent to challenge the suspension. If you fail to return this form within the proper time frame, you will waive your right to a hearing and your license will be automatically suspended.

The length of the civil suspension of your driver’s license depends on whether you have previously been convicted of a DUI, whether you refused the BAC test, as well as your compliance with the requirements to have your license reinstated.

  • First Offense: 90 day suspension and compliance with the requirements of reinstatement.
  • Second Offense: 18 month suspension and compliance with the requirements of reinstatement.
  • Third Offense: Lifetime suspension.
  • Refusal to Submit to BAC: 6 month suspension and compliance with the requirements of reinstatement.

In some cases, you may be able to reduce the length of the suspension if you have an ignition interlock device installed in your car. The availability of this option may depend on the circumstances of you situation. We can help you decide whether this option is available to you.

Requirements of Reinstatement

In order to have your driver’s license reinstated after you have to comply with the requirements of reinstatement outlined in 23 VSA §1209a. These requirements include:

  • Successful completion of an alcohol and driver’s education program (CRASH)
  • Payment of Fines
  • Obtaining SR-22 insurance

Additional penalties and screening may also be required, especially in instances of subsequent offenses.

Speak to an Attorney Today!

The attorneys, experts and investigators working for Burke Law, P.C. represent clients who are accused of driving under the influence (DUI) of alcohol or drugs in the criminal courts of Addison County, Bennington County, Caledonia County, Chittenden County, Essex County, Franklin County, Grand Isle County, Lamoille County, Orange County, Orleans County, Rutland County, Washington County, Windham County, and Windsor County.

23 VSA Chapter 13 (entire motor vehicle statute): http://www.leg.state.vt.us/statutes/fullchapter.cfm?Title=23&Chapter=013

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