You are not alone.
Call Robert Kaplan (802) 238-8944 for immediate assistance in the evenings and on weekends.
The driving under the influence (DUI) clients we help come from all walks of life, all professions and occupations and a wide age group. If you have been arrested for DUI and are feeling embarrassed and ashamed, you should know the odds are quite good that one or more of your friends, family members or co-workers have been through a similar experience. The reality is that very few people set out to drink too much and then drive and most people fail to realize how few drinks it takes to put them at risk of arrest for DUI. Every year, we help many people work through this experience.
This section of our website has been designed to compliment our legal services by providing information on DUI in Vermont, the court process which goes along with a DUI charge and important information that should be considered by anyone who has been charged with DUI.
Finally, the information presented in this website is for general, educational purposes only and is not intended to be legal advice. You should not confuse the information presented in this website with legal advice about your specific case or issue. A single fact, even one that does not seem important to you, can dramatically affect your case and it requires the review of an experienced lawyer to make specific assessments about your case.
The first thing you can do is to spend some time reading through the information on this website. We tend to be asked the same questions by our DUI clients and this section is designed to address some of the more common questions we hear. We have also included a description of the first court date because we have found that our clients feel more comfortable and relaxed having this information prior to appearing in court for the first time.
The next thing you can do is to hire a lawyer. Of course, we hope that you will select our law firm to help you defend your DUI case. Even if you do not select our firm, you should still hire a lawyer. A lawyer will do many things for you that you cannot easily do for yourself, if you can do them at all. Furthermore, you don’t want to be in the position of realizing in the middle of your DUI case that you need professional help. Getting involved in the middle of a case is more complicated and difficult for us than if we start a case from the beginning. We can’t always fix the early mistakes or undo missed deadlines and the best possible outcome may no longer be attainable. The other important reason to have a lawyer is to manage the paper trail and to keep an accurate record of the proceeding and the outcome. We get calls from people who went through their DUI case without a lawyer and there were mistakes with paperwork or court/DMV records or a misunderstanding of the consequences of a plea deal. Without the file an experienced lawyer creates and maintains, it is very difficult (and sometimes impossible) to straighten out these problems. IT IS WORTH THE MONEY TO HIRE A LAWYER.
A. What is the difference between DUI and DWI?
DUI is a nickname for driving under the influence. DUI is sometimes referred to as DWI which is a nickname for driving while intoxicated. In Vermont, DUI and DWI mean the same thing.
B. Criminal and Civil Cases.
A DUI case in Vermont usually consists of two different cases. First, there is a criminal case which is a criminal prosecution for driving under the influence. Second, there is also a civil license suspension case which is a civil case (sort of like a traffic ticket) in which a license suspension can be imposed as a result of driving under the influence of alcohol or refusing a blood-alcohol measurement test. Although these are separate cases, they are generally treated as one case with two different parts. There are some cases in which only the criminal case or only the civil case are brought against the defendant.
C. License Suspension Periods.
The driver’s license suspension periods for DUI in Vermont are: A. First offense with test: 90 days B. First offense with test refusal: 180 days C. Second offense: 18 months D. Third offense: Life
D. Driving During the Case.
You may or may not be able to drive while your case is pending. This depends on several different factors. First, if this is a second offense or higher, your driver’s license will likely be suspended within a few days of your arrest. If this is a first offense, you should be permitted to continue to drive (as long as you send in the Notice of Intent to Suspend) at least until your first court date. At your first court date, you may or may not be permitted to drive away from the courthouse. In cases with a high blood-alcohol content or an accident, it is not uncommon for the Court to impose a condition of no driving at all while the case proceeds. You should clarify this point with your attorney prior to coming to court.
If you are subject to a civil suspension case, there will likely be a Final Hearing. If you were not suspended prior to the Final Hearing, you will not be subject to immediate suspension at the Final Hearing even if you lose. In this case, you may drive yourself to and from the courthouse for the hearing (as long as your Conditions of Release in the criminal case permit you to drive and your license is otherwise valid). If you lose the Final Hearing in the civil suspension case, you will later receive a letter from the DMV setting out the date on which your license suspension will begin. You must stop driving on that date.
E. No Automatic Reinstatement.
Your driver’s license will NOT be automatically reinstated following the suspension period for DUI. You will have to complete the CRASH program and obtain an SR-22 form from your insurance company in order to get your driver’s license reinstated. After you have completed CRASH and obtained the SR-22, you then must go to the DMV, apply for reinstatement and pay a fee.
F. Criminal Refusal.
It is a separate crime to refuse the blood-alcohol test at the police station if you have been previously convicted of DUI and the officer had a reasonable basis to request that you take a blood-alcohol test.
G. Fees and Surcharges.
A DUI conviction and/or civil suspension for DUI includes a multitude of DMV fees, surcharges, court fees and the like. There are too many to list here and they change often but you, or your attorney, should check with both the court and DMV to find out if you have paid all of them.
H. Entry to Canada.
If you are convicted of the crime of DUI, you will be denied entry into Canada. After five years from the date on which you finished any sentence, including probation, which resulted from your DUI conviction, you can apply for permission to reenter Canada.
There are many differences between criminal and civil cases. The key differences between a criminal case and a civil case are the parties, the possible penalties and the burden of proof.
In a criminal case, the parties will be the government versus an individual or a corporate entity. In a criminal case the possible penalties usually include probation and/or incarceration in a jail or prison. The government will have the burden of proof in a criminal case meaning that the government must prove its case and the defendant is not obligated to prove anything. The burden of proof in a criminal case is the very high “beyond a reasonable doubt” standard. In a criminal case, the defendant is always entitled to a trial before a jury.
In a civil case, the parties are generally individuals or businesses versus other individuals or businesses. That said, there are some civil cases (like traffic tickets, municipal ordinance violations and the civil suspension discussed below) where the parties are the government versus an individual. In a civil case, there is almost no circumstance in which the outcome could include imprisonment (except in very rare instances in which someone is found to be in contempt of court). There are a variety of burdens of proof which apply in civil cases but in the vast majority of instances it is the “preponderance of the evidence” standard which is often described as 51 percent. The party bringing the claim has the burden of proof in a civil case. A jury trial is not always available in a civil case.
Vermont has a very unusual system for DUI cases. A DUI prosecution in Vermont usually involves two separate but related cases. The first case is a criminal prosecution for driving under the influence in which the possible penalties include a fine, probation, a jail sentence and a driver’s license suspension. The second case is a civil case in which the possible penalty is limited to the suspension of a driver’s license. Even though these are separate cases, they occur in the same court, are tracked together and are functionally treated as one case.
A civil suspension process is started when a police officer issues a Notice of Intent to Suspend to a driver. The driver then has an opportunity to contest the driver’s license suspension by returning the Notice of Intent to Suspend to the Department of Motor Vehicles in Montpelier and requesting a hearing on the suspension. The time period in which to request a hearing and contest the suspension is very short.
A civil suspension is not available in every DUI case. A Notice of Intent to Suspend can only be issued where the officer had reasonable grounds to ask a person to take a test and the person either refused to take the test or the test result produced an alcohol concentration of .08 or greater. Therefore, while someone with a .07 test can still be prosecuted for the crime of driving under the influence, there cannot be a civil driver’s license suspension for that person.
Please note that a civil suspension case is NOT a proceeding in which the State has an opportunity to OBTAIN the suspension of a driver’s license. It is a proceeding in which a driver has an opportunity to PREVENT the suspension of his/her driver’s license, an event which is already set to occur on a specified date. ONCE A POLICE OFFICER ISSUES A NOTICE OF INTENT TO SUSPEND TO A PERSON, THAT PERSON’S DRIVING PRIVILEGES WILL BE SUSPENDED UNLESS THE PERSON (1) REQUESTS A HEARING WITHIN THE TIME PROVIDED AND (2) WINS AT THE HEARING.
The result of having two separate cases which can both result in the suspension of the driver’s license means that there is a greater likelihood of a license suspension. As a result of the civil suspension process, the State can still get a license suspension if the criminal case is dismissed (except on a Motion to Dismiss which applies to both cases) or the driver is acquitted by the jury in the criminal case. In fact, if a hearing is not requested on the civil suspension by returning the Notice of Intent to Suspend to the Department of Motor Vehicles in the time allotted, there can still be a license suspension even where no criminal case is ever filed in court.
The burden of proof is much lower to get a license suspension in the civil suspension case than in the criminal case. Whereas the State must prove the criminal case by a standard of “beyond a reasonable doubt,” the civil license suspension only requires proving the elements by a “preponderance of the evidence” which is a much lower standard. Also, you are not entitled to a jury trial in the civil suspension case which means that your license suspension will be heard only by a judge. The State also does not even need to provide live witnesses at the civil suspension Final Hearing and can proceed, and sometimes win, using only the sworn statement of the arresting officer. The civil suspension case comes to a final hearing much faster than the criminal case which means that the license suspension may be in effect before a person has a chance to present their case to a jury which sometimes provides a disincentive for a defendant to contest the criminal case since many people are most concerned about the loss of license.
First, an important point:
IF YOU FAIL TO DELIVER THE WHITE COPY OF THE NOTICE OF INTENT TO SUSPEND WITH YOUR SIGNATURE ON THE BACK REQUESTING A HEARING TO THE DEPARTMENT OF MOTOR VEHICLES BY THE DUE DATE, YOUR LICENSE WILL BE SUSPENDED ON THE SUSPENSION DATE SET OUT ON THE FRONT OF THE FORM FOR A PERIOD OF EITHER 90 DAYS, 180 DAYS, 18 MONTHS OR LIFE.
The Notice of Intent to Suspend is a multi-part, 8 ½" x 14" form with lots of writing, some typed and some handwritten by the officer. It is perforated on the top with two holes for ease of filing. A person who is to be charged with DUI will ordinarily be given the white and yellow copies of the Notice of Intent to Suspend when they are released from being processed for DUI.
The Notice of Intent to Suspend is VERY IMPORTANT. It provides what may be your ONLY CHANCE to contest the suspension of your driver’s license. You generally have only a few days to sign the back of the white copy of the Notice of Intent to Suspend requesting a hearing and deliver it to the Department of Motor Vehicles in Montpelier. If you do not sign the back of this form and deliver it to the Department of Motor Vehicles within the time specified on the front of the form, your license WILL BE SUSPENDED. Also, placing it in the mail by the date specified is not sufficient. The Notice of Intent to Suspend must be RECEIVED by the Department of Motor Vehicles in Montpelier by the date specified.
Lots of people come to us for help who have not sent in the Notice of Intent to Suspend within the time allotted and are under automatic suspension. After the arraignment in the related criminal case, we can sometimes have the default on returning the Notice of Intent to Suspend set aside (after filing a motion, paying a fee and having a hearing) and get our client the opportunity to contest the suspension of his/her driver’s license. In a first offense DUI case, we can even get driving privileges reinstated pending the resolution of the case. However, if the Notice of Intent to Suspend has not been returned requesting a hearing by the due date, you will remain under automatic suspension until you hear differently.
We have found that the explanation provided by police officers about the Notice of Intent to Suspend varies greatly. Some police officers will simply hand over the Notice of Intent to Suspend with no explanation and others will go through it step by step. Some officers can give incorrect explanations. It is important that you do not rely on what the officer told you about the Notice of Intent to Suspend. If you failed to return the Notice of Intent to Suspend and request a hearing in time because of something the officer told you, write down exactly what you remember the officer telling you so that you will have a record of your memory later.
Finally, if the officer kept your driver’s license, the yellow copy of the Notice of Intent to Suspend will function as your driver’s license during the pendency of your case. If you need a photo ID, you can go to the DMV and obtain a non-driver photo ID to use until you get your driver’s license back.
If you have a Vermont driver’s license, the officer will keep your driver’s license if you are to be charged with driving under the influence and you meet the statutory criteria for a civil suspension. In exchange, the officer will give you a two part form called a Notice of Intent to Suspend. The Notice of Intent to Suspend is an 8 ½" x 14" form and consists of two identical pages, one white and one yellow. This is a very important document which is explained in more detail above. However, you must immediately sign the back of the white page requesting a hearing and deliver it to the Vermont Department of Motor Vehicles in Montpelier. There is a very short time frame in which to do this. The yellow copy of the Notice of Intent to Suspend will serve as your driver’s license until your license is suspended or the civil suspension case is concluded in your favor.
If your driver’s license is issued by a state other than Vermont, your driver’s license will be returned to you by the officer when you are released. You will also receive the Notice of Intent to Suspend as described above. Your privilege to drive in Vermont may be suspended even if you retain a valid driver’s license from another state.
It depends on what has happened. If you have never previously been convicted of driving under the influence or had your license suspended for an alcohol violation and you signed the back of the white Notice of Intent to Suspend and delivered it to the Department of Motor Vehicles in Montpelier in the time provided, your license will not be suspended (if at all) until after the Final Hearing in your civil suspension case. If you have one or more previous convictions for driving under the influence (including in other states and also including a DWAI in New York State), your license will be suspended automatically on the suspension date set out on the front of the Notice of Intent to Suspend form. You must still sign and return the Notice of Intent to Suspend form even if you are subject to an automatic suspension or you will lose the right to contest the suspension of your driver’s license and the possibility of avoiding a long term license suspension.
Even if your driver’s license is not suspended automatically after your arrest for DUI, you should still begin to prepare for the consequences of a license suspension if it occurs. One thing to bear in mind is that Vermont does not have a restricted or “work” license for people under a DUI suspension.
No. Vermont does not offer a restricted or “work” driver’s license for people under a DUI suspension. No such thing exists. People sometimes come to us with the firmly held belief that a “work license” is available because they know someone who claimed to have a “work license.” Unfortunately, some people under a DUI suspension will continue to drive and will tell family and friends that they have a “work license.” This creates a great deal of confusion when the friends and family members believe the “work license” story.
There is no standardized “legal limit” in Vermont below which you cannot be convicted of DUI. You can be convicted of the crime of driving under the influence in Vermont if the State can prove to a jury that you were under the influence of alcohol “to the slightest degree” while driving. The State does not need to have an alcohol-blood test result to prove this. This is not widely known and most people are very surprised to learn this.
The .08 test result refers to a measurement of the alcohol content in your blood stream. There is an evidentiary presumption that you were driving under the influence of alcohol if the police obtained a valid, admissible sample of your blood-alcohol content with in two hours of your operation of a motor vehicle which showed a blood alcohol content of .08 or greater. If the State can prove that your alcohol concentration was .08 or higher, at the time of operation, you can be convicted of DUI on this basis alone. This does not mean that if your test is a .079, you cannot be convicted of the crime of driving under the influence. With a test result lower than .08, the State can either do a Relation Back analysis to prove that your blood-alcohol content was .08 or higher at the time you were driving or it can attempt to prove that you were under the influence “to the slightest degree.”
Relation Back refers to the process of “retrograde extrapolation” in which a chemist or other qualified professional uses accepted averages to estimate your blood-alcohol content at the time of operation of a motor vehicle as derived from a test result obtained sometime after operation. Relation Back is a mechanism to take into consideration the absorption and elimination of alcohol in your blood stream. This is important because the crime is to be under the influence of alcohol at the time of operation of a motor vehicle. It is not a crime to be under the influence of alcohol at a police station 60 minutes after operation.
Here is why absorption is important: When you drink alcohol, it is not immediately absorbed into your blood stream. For instance, if you guzzle a bottle of vodka, you will likely not be under the influence two minutes later because the vodka has not had time to be absorbed into your blood stream. So, if you guzzle the bottle of vodka and immediately drive and get stopped, you will not have been under the influence at the time of operation but when you take the test an hour later, the test result will be very high. In this case, a chemist could come to court with you and provide expert testimony to show that you were not under the influence at the time of operation although you were falling down drunk when you took the test.
Here is why elimination is important: Just as it takes time for alcohol to be absorbed into you blood stream, your body also eliminates alcohol from your blood stream over time. The accepted average elimination rate is .015 per hour. For example, let’s say you are stopped while driving at 10:00 p.m. and take the test at 11:00 p.m. The test result at 11:00 p.m. is .07. A chemist could then testify that .015 of alcohol was eliminated from your blood stream during the hour between the stop and the test so your actual blood-alcohol content at the time of operation was .085 (.07 from the test + .015 eliminated between the stop and the test). You can then be charged with driving with a blood-alcohol content of .08 or greater even though the test result was only .07.
The first court date is the arraignment on the criminal DUI charge and the preliminary hearing in the civil suspension case. You should make careful note of the date and time for your court appearance and arrive on time. If you tend to be late to things, plan on arriving 15 minutes early so that you will be on time. Bear in mind that the judge will be seeing you for the first time and that your personal appearance does matter.
You may or may not be permitted to drive away from the courthouse after the first court date even if you were permitted to drive to court. You should consult with your attorney prior to the first court date to determine if there is any likelihood that you not be able to drive after the first hearing. If there is any question about this, have someone with a valid license drive you to and from the first court date.
When you arrive at the court, you will receive paperwork including the official charging documents in the criminal case and required disclosures in the civil suspension case. If you arrive at the court before your lawyer, the court officer in the courtroom (or at a window near the clerk’s office) will give this paperwork to you. Make sure to tell the court officer that you will be represented by an attorney and give your attorney’s name to the court officer. Give all of the paperwork to your attorney. If you attorney arrives before you, he/she will get the paperwork for you.
You will have to appear in front of the judge. If you have a lawyer, you will likely not have to say anything yourself and will be saved the embarrassment of the judge reading the charge against you out loud. You will have to enter a plea of guilty or not guilty to the criminal charge and the judge will impose Conditions of Release or order that you be held in jail until you post bail in the amount the judge determines to be appropriate. The clerk will then give you your next court date and, if you are not to be held on bail, you will go to the clerk’s office to sign the Conditions of Release and be free to go. If you are to be held on bail, a deputy sheriff will take you through a side door of the courtroom to the holding area where you will await transport to the jail.
In DUI cases, it is not typical for bail to be imposed. However, bail is imposed routinely in certain cases:
A. Out of state defendants:
If you are from out of state, the standard practice is to impose bail to assure your continued involvement in the proceedings. In our experience, judges will often not impose bail on out of state defendants who are represented by a local attorney even though the State’s Attorney will almost always request that bail be imposed.
B. Multiple prior convictions for DUI:
If you have been previously convicted of DUI two or more times in your life, there is a probability that the State will request that the judge impose bail and a real risk that the judge will agree.
C. Very high test:
If your test was very high and you have been previously convicted of DUI or the allegations against you include dangerous driving and/or an accident, the judge may impose bail.
D. Serious accident:
If you were involved in an accident in which someone was seriously injured, the judge may impose bail even if it is a first offense.
In the time between the beginning and end of a criminal case, the court has the power to impose restrictions on the defendant. Instead of holding a defendant in jail pending the outcome of a DUI case, the court will generally release the defendant on conditions. These conditions, known as the “Conditions of Release,” are a set of rules the defendant has to follow while the criminal case is pending. If a defendant violates one of the conditions, the violation constitutes a separate criminal offense. Also, if a condition is violated, the court will then review the conditions and decide whether more restrictive conditions should be imposed or whether the defendant should be held in jail until the case is concluded.
The typical Conditions of Release imposed in a DUI case are to come to all court appearances, to inform the court and your lawyer if your address changes, not have any other criminal charges brought against you, not drive unless your license is valid and not purchase, possess or consume any alcohol. Less common, but still regular conditions are to report everyday to a police station at a set time and submit to an alcohol test in order to demonstrate that you are not drinking and to have a substance abuse evaluation and follow any treatment recommendations.
Working with the Conditions of Release at the arraignment in a DUI case is one of the first things we do for our clients. The State will propose Conditions of Release to the judge at the arraignment. We typically discuss Conditions of Release with the State’s Attorney prior to arraignment and can sometimes negotiate acceptable Conditions of Release before the judge comes to the bench. If the State’s Attorney insists on Conditions of Release which we feel are unreasonable, then we will present an argument to the judge during the arraignment against the proposed Conditions of Release. In our experience, judges take the issue of Conditions of Release seriously and will consider both sides before making a decision. Setting Conditions of Release is one area where you will be at a serious disadvantage if you do not have a lawyer at the beginning of your DUI case.
In Vermont, the Conditions of Release are each assigned a number. When you look at the Conditions of Release form you receive from the court clerk after the arraignment, you will see that there is a number before each of the conditions. These numbers refer to standard conditions and you will only have the numbers which apply to your case. The conditions we expect to see in a typical DUI case are 1, 2, 3, 8, 12. 1, 2, 3 are standard conditions which are imposed in almost every case. Condition 8 relates to driving (but make sure it’s not Condition 7 discussed below) and Condition 12 is the no alcohol condition.
Violating the Conditions of Release will often undermine the effectiveness of the defense to the underlying DUI charge. We have had many defensible DUI cases in which the Conditions of Release were violated and we could no longer attain the outcome we expected. Do not violate ANY of the Conditions of Release. In particular, if there is a condition of no alcohol, don’t put yourself in a position to have a problem. Stay out of bars and nightclubs even if you intend not to drink. It is far too easy to “just have one” and it’s a slippery slope from there. Also, being in a bar or nightclub late at night dramatically increases your likelihood of having interaction with the police. You could simply be a bystander to someone else’s bad behavior but if the police start taking names, there is a good chance your Conditions of Release will come up on the police computer. Then you will be subject to special scrutiny and any doubt will be resolved against you.
There are two driving related Conditions of Release to which you must pay particular attention. The driving related conditions are number 7 and number 8.v
Condition 7 is no driving. If Condition 7 is imposed in your case, you may not drive any motor vehicle which includes an ATV and/or a snowmobile. Any driving violates this condition. Do not drive.
Condition 8 is “no driving unless your license is valid.” Condition 8 tends to create confusion since people charged with DUI are often uncertain about the status of their driver’s license. If you have been previously convicted of DUI and you received a Notice of Intent to Suspend, the odds are great that you are already under a license suspension by the arraignment date in the criminal case which means that your license is not valid and you may not drive even if Condition 8, rather than Condition 7, is imposed by the judge. If this is a first offense DUI (in both the civil and criminal context) and you were issued a Notice of Intent to Suspend and you requested a hearing within the time provided, your license is not likely under suspension and you may continue to drive until DMV advises you that your license has been suspended. If this is a first offense DUI (in both the civil and criminal context) and you were not issued a Notice of Intent to Suspend, there is no civil suspension proceeding and your license will not be suspended prior to being convicted of DUI and you may continue to drive. Finally, if you license is suspended for some reason other than the pending DUI case, your license is not valid and you may not drive. If you are at all uncertain about the status of your license, you should obtain clarification about your driving privilege from your lawyer before getting behind the wheel.
After the arraignment, we begin our work defending the DUI case. We will examine the entire case to determine the strongest avenues to attack the State’s evidence. We will then take the steps which create the best opportunity for a favorable outcome.
During the case, we ask our clients to help us in two ways. The first is to avoid any additional trouble while the case is going forward. DUI cases sometimes arise as a result of a person having a problem with alcohol which is not fully appreciated prior to the DUI arrest. Whether or not a client of ours acknowledges a problem with alcohol, we ask all DUI clients to either abstain from alcohol or to restrict their use of alcohol during the case. Few things limit our ability to help our clients more than an alcohol related problem during the process of a DUI case. If our clients don’t drink during the case, these problems will not happen.
The second thing we ask from our clients is cooperation. It is incredibly important for our clients to appear on time for all court appearances. When a court date is set, we send our client a letter with the date and time of the court appearance. Our client must record this date to make sure he/she remembers the date and time of the appearance. Also, our client must be on time to all court appearances. There have been plenty of instances when the court calls our case and the client has not yet arrived at the courthouse. This upsets the judge and sends the message to the prosecutor that the client is not responsible or does not take the case seriously. A client being late, even once, can limit our ability to help that client.
The other important aspect of cooperation is communication. We ask that our clients inform us of important changes in their lives. Change of address, change of job, death of a family member and the like are things which might impact our efforts. Also, if there is an issue with a Condition of Release, we need to know as soon as possible so that we can avoid a problem or limit the consequences. If there are witnesses or documents which might be helpful to the case, we need to know as soon as the information becomes available. It is generally not useful for us to learn about some important witness or piece of information five minutes before a court hearing starts.
A DUI charge is guaranteed to be an unwanted expense and a source of inconvenience and difficulty. The assistance of a lawyer experienced in this type of case provides an opportunity to lessen the ultimate consequences of the DUI charge and will almost certainly make the process smoother and less intimidating. We hope that you will allow us to assist you with your case but what ever your decision, we wish you the best of luck moving forward.