Contents

Q:

What is a DUI in Vermont?

A:

DUI or DWI or DUID are motor vehicle crimes in the State of Vermont. The elements of DUI are that a person operated a motor vehicle, on a public highway, while under the influence of intoxicating liquor, drugs, or both.

Q:

I received a white sheet of paper called “Notice of Intention to Suspend or Disqualify” my license or driving privilege. Should I request a hearing, and how much time do I have to request that hearing?

A:

Yes, you should request a hearing.  Flip the Notice of Intention to Suspend or Disqualify over, fill out the bottom on the back of the form, and mail it to VT DMV at the address on the back of the form. DMV must receive your request for a hearing within 7 days of the issuance of the form to you by law enforcement.  If DMV does not receive your request within 7 days, your license or privilege will be suspended on the 11th day. I encourage clients to send the form by certified mail, UPS, or Fed Ex, all of which provide tangible proof that you physically sent the form. Alternatively, you can physically deliver the form to the DMV in Montpelier. If you deliver the form in person, please make sure DMV stamps the date that they received it and provides you with a copy of the same.

If you need assistance with this process, please call my office. My paralegal, legal assistant, or I can help you.

Q:

Is DUI a crime?

A:

Yes, DUI, DWI, and DUID are all crimes and are punishable by up to two (2) years in prison and/or a $750 fine if convicted of a first offense.

Q:

Is DUI a misdemeanor or felony in Vermont?

A:

DUI, DWI, and DUID, first and second offenses are misdemeanors in the State of Vermont as Vermont defines a misdemeanor as any offense that is punishable with up to two (2) years in prison. A DUI third offense, because it is punishable by up to five (5) years in prison, is a felony.  A DUI with serious bodily injury or death resulting is punishable by up to 15 years in prison, and a DUI, death resulting, carries a mandatory minimum of 1 year.

Q:

What is the difference between DWI and DUI in Vermont?

A:

DWI is the “per se” offense of operating, attempting to operate, or being in actual physical control of a motor vehicle with a blood alcohol concentration of .08% or more, whereas DUI requires the state to prove the person was “under the influence of intoxicating liquor,” and does not require a chemical test.

Q:

What is a DUID or DUI-D?

A:

A DUID, sometimes referred to as DUI-D, is the crime of driving under the influence of a drug other than alcohol, or under the combined influence of alcohol and another drug.

Q:

What are the consequences to my criminal record for a DUI charge or conviction?

A:

If formally charged, the charge will appear on the Vermont Criminal Information Center (VCIC) database and ultimately the National Criminal Information Center (NCIC) database.

If convicted, the conviction will appear on the Vermont Criminal Information Center (VCIC) database and ultimately the National Criminal Information Center (NCIC) database.

Q:

Is there a statute of limitations for the State of Vermont to bring a DUI prosecution?

A:

Yes, for misdemeanor and felony DUI/DWI/DUID, the statute of limitations is three (3) years, i.e., the State must file a charging document (Information) within three (3) years of the date of the incident.

Q:

What happens when you are pulled over for suspicion of DUI/DWI/DUID or for a traffic violation in Vermont?

A:

In Vermont, you are required to stop when signaled to do so by law enforcement.

You are required to provide your license, registration, and insurance information upon request. Vermont law does not require you to speak with law enforcement or to provide any other information. Vermont law does not require you to answer any questions about consumption of alcohol or other drugs, including prescription medications.

Q:

Am I required to exit my vehicle if requested to do so?

A:

Yes, if requested or ordered out of your vehicle, you are required to exit. If you do not, law enforcement will likely forcibly remove you from your vehicle.

Q:

Am I required to submit to Standard Field Sobriety Tests (SFST’s) in Vermont?

A:

No, you are not required to submit to SFST’s in Vermont, and there are no automatic or future licensing consequences specifically for refusing to submit to SFST’s to your license or privilege to use your out-of-state license in Vermont. 

Q:

Am I required to submit to a handheld Preliminary Breath Test (PBT), in Vermont?

A:

No, you are not required to submit to a PBT roadside, and there are no automatic or future licensing consequences specifically for refusing a roadside PBT.

Q:

Is there a breathalyzer test in Vermont?

A:

Yes, in common usage the term breathalyzer has come to mean a device capable of analyzing the content of a suspect’s breath for determining alcohol concentration in the blood. Vermont generally utilizes two different “breathalyzers.” The first is generally a handheld “Alcosensor” portable breath test (PBT), manufactured by Intoximeters, and utilized roadside to assist law enforcement in determining probable cause for arrest. 

Second, Vermont uses an infrared breath-testing device called the Datamaster DMT for evidentiary breath tests, generally at the law enforcement (Vermont State Police (VSP), town police, sheriff) stationhouse, barracks, etc. National Patent Analytic Systems (NPAS) previously manufactured the DMT. 

Q:

What is an evidentiary chemical test in Vermont?

A:

Vermont is, in the first instance, an evidentiary breath test state, i.e., in Vermont evidentiary chemical tests by breath are preferred over blood tests, primarily because breath is less invasive and costs less than blood.

Q:

Are there blood tests for DUI/DWI/DUID in Vermont?

A:

In Vermont, law enforcement’s request for the drawing of blood is an option when:

  • Breath testing equipment is not reasonably available;
  • Law enforcement has reason to believe the suspect is not capable of providing a sufficient sample of breath;
  • Law enforcement has reasonable grounds to believe a suspect is under the influence of a drug other than alcohol, or the combined influence of alcohol and another drug;
  • In law enforcement’s opinion, the suspect is incapable of making a decision, or is unconscious or dead.

Q:

Am I entitled to speak with a lawyer before deciding whether to submit to an evidentiary breath test at the station or an evidentiary blood test?

A:

Yes, you have a statutory right to consult with either your own counsel or to consult with an on-call public defender via phone prior to making a decision of whether to submit an evidentiary sample. Generally, you may have up to 30 minutes to consult with counsel, and that consult should be reasonably private, i.e., law enforcement is not allowed to listen in on your conversation.

Q:

Do I have a right to provide a second evidentiary test?

A:

Yes, if you provide an evidentiary sample of breath or blood, you have a statutory right to submit a second evidentiary sample of breath, or to request a second evidentiary blood draw if you have consented to a blood draw.

Q:

Do I have a right to an evidentiary blood test?

A:

Maybe. Vermont is primarily an evidentiary breath test state. There may be certain situations in which you have a right to an evidentiary blood test, such as if you are incapable of providing a sufficient volume of breath, or where you are unconscious. See above for statutory exceptions to an evidentiary breath test.

Q:

Do I have a right to decline an evidentiary breath or evidentiary blood test?

A:

Yes.  In Vermont, you have the right to decline to provide an evidentiary sample of your breath or your blood. The State has the option of seeking a search warrant from a judge. Ultimately your “refusal” of a breath or blood test can be entered into evidence against you. 

Q:

Is it a crime to refuse to provide an evidentiary sample of breath in Vermont?

A:

Generally no. It is not a crime to decline to provide an evidentiary sample of breath unless you have a prior DUI/DWI/DUID conviction in any U.S. state or territory, or a prior out-of-state DWAI adjudication.  If you do have a prior conviction for DUI/DWI/DUID or DWAI adjudication, in addition to DUI, you can also be charged with criminal refusal, which is a separate crime from DUI.

Q:

Is it a crime to refuse to provide an evidentiary sample of blood?

A:

No. Pursuant to the United States Supreme Court decision in Birchfield v. North Dakota, 519 U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), a state cannot criminalize a refusal to submit to an evidentiary blood draw for DUI/DWI/DUID.

Q:

Are there any potential consequences for declining to provide an evidentiary breath or blood test?

A:

Yes, refusal of a chemical test can lead to a loss of license or loss of your privilege to use your out-of-state license in Vermont for a period of at least six (6) months. If you request a hearing, you are entitled to a hearing before DMV can suspend your license, as long as you don’t have a prior civil license suspension or prior DUI/DWI/DUID conviction. 

Q:

Who bears the burden of proof at a civil license suspension hearing?

A:

The State has the burden of proof, by a preponderance of the evidence, to demonstrate to a Superior Court, Criminal Division judge that either you submitted to an evidentiary test with a BAC result of .08% or more, or that you refused to provide an evidentiary sample. Generally, the State may meet its burden by submitting affidavits and is not required to put on live witness testimony.

Q:

Do I have a right to a jury trial in the State of Vermont on my criminal DUI charge?

A:

Yes, you have a right to a jury trial with a 12 member panel of your “peers” drawn from the county in which you are being prosecuted.  You, the defendant, are presumed to be innocent, which is called the presumption of innocence (“POI”). The State has the burden of proof (“BOP”), and only after the unanimous decision by the jury that the State has proved every element of the offense beyond a reasonable doubt (“BARD”), can you be convicted.

Q:

Do I have a right to legal counsel to defend against my DUI charge?

A:

Yes, pursuant to the 6th Amendment of the United States Constitution and the Vermont Constitution, you have the right to be represented by counsel of your own choosing.  If you qualify as indigent, then the State will pay for counsel for you, generally a public defender.

Q:

What does the State have to prove to convict me of DUI?

A:

The State of Vermont must prove four elements, to the unanimous satisfaction of 12 jurors, beyond a reasonable doubt: (1) that the accused; (2) operated or attempted to operate or was in actual physical control of a motor vehicle; (3) on a public highway; (4) while under the influence of intoxicating liquor at the time. See, e.g., State v. Broe (1985) 146 Vt. 135, 498 A.2d 1039; 23 V.S.A. §1201(a)(2).  All four of these elements must occur at the same time.

Q:

How can I get my license back after a DUI conviction or a civil license suspension adjudication in Vermont?

A:

  • Serve the term of the suspension, i.e., either 90 days for a DUI first offense; 6 mo. for an evidentiary refusal on a civil license suspension adjudication
  • Complete the Impaired Driver Rehabilitation Course administered by the Vermont Department of Health or an out-of-state equivalent 10-hour course
  • File proof of Insurance (SR-22) – required for 3 years
  • Pay a reinstatement fee to DMV

Q:

Does Vermont have restricted driver’s licenses or work permits?

A:

Yes, you may qualify for a restricted driver’s license (RDL), which requires, among other things, for you to have an Ignition Interlock Device (IID) installed in your vehicle. With an RDL you can drive day or night, provided the IID is installed and functioning. Please see www.dmv.vermont.gov for complete program details.

Q:

What are the consequences of having a criminal conviction for DUI in Vermont?

A:

In addition to the DMV licensing consequences and having a criminal record, a DUI conviction can impede your ability to obtain or stay in certain jobs, to obtain or keep professional licenses, to serve in the military, to obtain or keep certain educational scholarships, to physically enter Canada and other countries, among others. For a more complete list, please see the Vermont Attorney General’s website at www.ago.vermont.gov.

Q:

Can I expunge a DUI from my record in Vermont?

A:

No. Vermont does not have a statutory mechanism to expunge a DUI conviction.

Q:

Can I seal a DUI conviction from my record in Vermont?

A:

Yes, if certain requirements are met, your DUI/DWI/DUID conviction may be sealable. Generally, 10 years must have passed since the completion of the case or discharge from probation, whichever is later, and the person has not had any further criminal convictions.  

An experienced DUI defense lawyer can review and analyze your case, criminal history, applicable statute(s), etc., and advise you on this process.

Q:

I was younger than 21 at the time of my conviction. Can my DUI conviction be sealed?

A:

If you were less than 21 at the time of conviction, you may qualify for sealing under a different statutory scheme (juvenile statutes) if certain requirements are met. You should consult experienced DUI counsel to explore your options.

Q:

What can a DUI defense lawyer do to assist me?

A:

DUI defense is one of the most technical and specialized areas of criminal defense. Every DUI case has unique facts and circumstances, and most DUI cases are defensible.  Defenses may come through evidentiary challenges, procedural challenges, constitutional challenges, or mitigation. Knowledgeable, experienced, and diligent defense counsel can identify favorable issues in your case and provide a defense roadmap to maximize your chances of success.

As a member of the National College for DUI Defense (NCDD), I’ve learned from the best and brightest DUI defense lawyers from throughout the country. For over 20 years now I’ve learned new methods for challenging the State’s case and have moved case law forward through litigation. I’ve successfully defended hundreds of cases, obtaining either dismissals or reduced charges. If you are charged with DUI, DWI, or DUID, or any other driving offense, please feel free to give me a call for a free consultation.