Knowing your rights can help you protect infringement of your liberty in any type of Vermont criminal case, including DUI. When talking about individual rights and police interaction I find it helpful to imagine a ladder. You start at the bottom of the ladder, beneath the first rung as you would if you were standing on the ground looking at a ladder. At that point you are not on the ladder and you have complete freedom and no infringement on your liberty from law enforcement. To get you to the top of the intrusion of your rights ladder, an arrest, law enforcement must climb the rungs. It’s a bit of a silly metaphor (and an even sillier graphic) but it is a useful image to illustrate the justification law enforcement must possess to move up each step towards arrest.
The Vermont DUI Arrest Ladder
To unlock the next step (or steps) law enforcement must have the corresponding justification to do so.
Most DUI arrests in Vermont begin with a motor vehicle stop. All that is required of law enforcement to stop a motor vehicle in Vermont is (1) a motor vehicle violation or (2) reasonable suspicion of criminal activity. A motor vehicle violation can be something as simple as speeding, having an expired registration sticker or having a tail light out. If an officer stops a vehicle for reasonable suspicion of criminal activity (specifically DUI) it is usually because the car was changing speeds, weaving within its own lane, or a combination of erratic operation that leads the officer to reasonably suspect the operator may be impaired by alcohol or drugs. A motor vehicle stop is considered to be a fairly low level of intrusion on your liberty, so the corresponding required police justification for the stop is also fairly low.
Let’s suppose the stop was based on a tail light being out. A faulty tail light has nothing to do with DUI, but it is a valid reason for a motor vehicle stop at 1:00 am (or any time of day). Once you are stopped by law enforcement they must gather reasonable suspicion of criminal activity to request that you exit your vehicle, perform standard field sobriety tests, or submit to a preliminary breath test roadside.
How Does Vermont Law Enforcement Create Reasonable Suspicion of Criminal Activity to Justify an Exit Order?
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 to justify climbing to the next rung of the arrest ladder. 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.
If You are Ordered Out of Your Car, You 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.
Probable Cause for Arrest on DUI in Vermont
Police need probable cause to support a DUI arrest in Vermont. This means that at the time of the arrest, the officer must have had enough evidence against you to support a legal finding of probable cause. Probable cause is a higher level of justification than reasonable suspicion of criminal activity. This makes sense, because an arrest is a far greater intrusion on your liberty than a exit order or request for standard field sobriety tests. To get to arrest rung on the ladder, the officer must have probable cause.
Law enforcement obtain probable cause for DUI by observing all of your actions leading up to the arrest. They can build probable cause for DUI based on erratic driving, admission to drinking, odor of intoxicants, and preliminary breath test over .08 BAC. They can build probable cause for DUI based on a tail light out, admission to drinking, mumbled speech and failing to turn correctly on the walk and turn test. Any number of combinations of evidence gathered during your interaction with the police can be used against you to create probable cause for your arrest.
Your Best Defense to DUI in Vermont is Asserting Your Rights Early, Often and Politely
Law enforcement has a difficult, often dangerous job. You have rights. The intersection of asserting your rights in the face of a liberty intrusion can be a delicate, vulnerable place to be for both the individual and law enforcement. MAINTAIN CALM, BUT BE FIRM. If the officer inquires about your drinking after you are stopped for speeding, you can say that you don’t want to answer any questions. If he orders you out of the vehicle to “check your eyes” or to “make sure you are okay to drive” you can say, “I have the right to refuse any testing and I am invoking that right.” You may be arrested. REMAIN CALM. You will be offered an attorney back at the station. We strive to be available 24 hours a day / seven days a week. If for some reason a Burke Law attorney is not immediately available in the middle of the night, an on-call public defender is available to explain your options.
The less evidence you provide roadside, the less justification exists for law enforcement to move up the ladder to arrest. If they move up the ladder anyway, you have built a great defense for yourself.