Why did I receive a DUI civil in Vermont?
DUI civil offenses are issued when (1) a person submits to an evidentiary breath test and the results are over .08 BAC or (2) when a person refuses an evidentiary breath test.
I am often met with confused looks when I explain that you can get a civil DUI for refusing the evidentiary breath test. Many people think that they have a constitutional right to refuse the test at the station. They do not.
Vermont is an implied consent state which means that by operating on Vermont roadways you agree to submit to an evidentiary breath test if one is reasonably requested by law enforcement. 23 V.S.A. § 1202 states that “Every person who operates, attempts to operate, or is in actual physical control of any vehicle on a highway in this State is deemed to have given consent to an evidentiary test of that person’s breath for the purpose of determining the person’s alcohol concentration or the presence of other drug in the blood. The test shall be administered at the direction of a law enforcement officer.”
I received a Notice of Intent to Suspend my privilege to operate in Vermont, what should I do?
As soon as you receive a Notice of Intent Suspend you should contact an experienced Vermont DUI attorney. There are important steps you must take, quickly, to protect your license.
If you are issued a Notice of Intent to Suspend you must sign and return the form to the address indicated on the form within 7 days. If you fail to return the form you will forego your right to challenge the civil DUI and will go under suspension on the 11th day after the DUI issued.
I recommend sending the form with some type of tracking so that you can verify that it was received by the DMV. It does not matter if you mail it certified or with other tracking, it is just important that you have a way of verifying it was received by the DMV. If you go to the DMV to hand deliver the form you should ask the DMV clerk to stamp in the form and to make you a copy (or at least take a picture of the stamped form with your phone).
What happens if I do not request a hearing for my Vermont civil DUI?
If you do not request a hearing within 7 days from the issuance of the form then the DMV will calculate the length of your suspension (6 months for a first offense refusal, 90 days for a first offense with a BAC greater than .08, 18 months for a second offense, and life for a third or subsequent offense) and you will go under suspension on the 11th day after the Notice of Intent to Suspend issued.
What happens if I do request a hearing for my Vermont civil DUI?
If you request a hearing within 7 days then you will receive a preliminary civil DUI hearing. The preliminary civil hearing will be held at the same date and time as your arraignment. This is required by statute, but sometimes officers fail to set the preliminary civil at the same date and time as the arraignment, so it is important to check your Notice of Intent to Suspend to confirm the preliminary hearing date and time. For a first offense it a guideline that the civil suspension preliminary hearing be within twenty-one days of the alleged offense. For a second or subsequent DUI civil it is required by statute that the civil preliminary hearing, if requested, be held within twenty-one days of the offense.
You or your attorney will enter a denial on the civil DUI in Vermont Superior Court. A final civil suspension hearing will then be set by the criminal court. If it is a first offense DUI then you will maintain your privilege to operate during the window between the civil preliminary hearing and final civil suspension hearing. If it is a second or subsequent DUI then your privilege to operate will be suspended on the 11th day after your arrest and it will remain suspended until you either (1) win at a final civil suspension hearing or (2) serve the required term of suspension and meet all license reinstatement requirements imposed by the Vermont DMV.
Prior to the final civil suspension hearing you or your attorney must provide written notice of the issues you intend to contest at the final civil suspension hearing. There are a limited number of issues that you can dispute in a civil suspension. They are:
(A) Whether the law enforcement officer had reasonable grounds to believe the person was operating, attempting to operate, or in actual physical control of a vehicle in violation of section 1201.
(B) Whether at the time of the request for the evidentiary test the officer informed the person of the person’s rights and the consequences of taking and refusing the test substantially as set out in subsection 1202(d) of this title.
(C) Whether the person refused to permit the test.
(D) Whether the test was taken and the test results indicated that the person’s alcohol concentration was above a legal limit specified in subsection 1201(a) or (d) of this title, at the time of operating, attempting to operate, or being in actual physical control of a vehicle in violation of section 1201 of this title, whether the testing methods used were valid and reliable, and whether the test results were accurate and accurately evaluated. Evidence that the test was taken and evaluated in compliance with rules adopted by the Department of Public Safety shall be prima facie evidence that the testing methods used were valid and reliable and that the test results are accurate and were accurately evaluated.
(E) Whether the requirements of section 1202 of were complied with.
An experienced Vermont DUI lawyer will be able to assess your case and review any available audio or video footage to determine if you have a substantial likelihood of prevailing at a final civil suspension hearing on any of the above issues.
At the final civil suspension hearing a judge will hear the case and decide if the operator wins or if the prosecutor wins. If the operator wins the civil suspension will be dismissed. If the prosecutor wins the operator will go under suspension (if a first offense) or remain under suspension (if a second or subsequent offense). The suspension will remain in effect until the operator complies with the term of suspension, takes any required alcohol education classes, does any required counseling, obtains financial responsibility insurance (also known as Sr-22 insurance), and pays any fines and fees to the criminal court and Vermont DMV.