DUIs in Vermont typically begin with a traffic stop. After the stop the law enforcement officer will ask or order you to exit your vehicle. You must comply with this order. You do not have to submit to standard field sobriety testing or a preliminary breath. For more information about your Vermont DUI investigation rights read this blog post.
For an exit order to be constitutionally valid in Vermont, the officer must possess reasonable suspicion of criminal activity.
Vermont law enforcement must compile “clues” or indicia of intoxication that add up, legally speaking, to reasonable suspicion of DUI to justify an exit order. Typically, these clues are based on the officer’s observations of your behavior during their interaction with you. For instance, if the officer requests your license and registration and it takes you a long time to produce it or you fumble the documents, they could note those actions as “clues” supporting a conclusion that you were impaired. Additionally, police look for slurred, mumbled or confused speech; bloodshot or watery eyes; odor of intoxicants and whether or not you admitted to consuming alcohol or drugs when they ask you.
The Vermont Supreme Court has ruled that as little as two indicia of intoxication can meet the requirement of reasonable suspicion of criminal activity. In other words, you could get pulled over for a tail light being out, admit to having one beer, and have watery eyes from allergies and the Vermont police are justified to order you out of your car and request standard field sobriety tests including a preliminary breath test. In some cases, you might even deny drinking and the officer can still order you out of the vehicle if you take too long to produce your documents and have an odor of beer in your car. An interesting case from 2010 can be read here.
If You are Subject to a DUI Exit Order, You Still Have the Right To Refuse Standard Field Sobriety Tests and the PBT.
This part is tricky. I’ve watched hundreds of DUI videos over the years and very often the police ask a person out of their vehicle to “check to make sure you are okay to drive” or “check your eyes.” If you are asked to exit your vehicle and the officer says anything along these lines – that is the police asking you to do standard field sobriety tests. You have a right to refuse any and all standard field sobriety testing in Vermont, but the police are not required to tell you that you have that right roadside. You do not have a right to consult with an attorney at that time, only once you are back at the station do you have the right to consult with an attorney before taking the official evidentiary Datamaster test (or blood test).
Vermont law enforcement are not required to have any additional justification beyond reasonable suspicion of criminal activity to conduct the exit order, standard field sobriety tests, and preliminary breath test. In other words, even if you perform flawlessly on the standard field sobriety tests the officer can still proceed to request a preliminary roadside breath test from you.
