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For years, I have kept my employee-parking placard on the back of my rear-view mirror.  I am probably among many who, according to state agencies, has been violating the law by hanging parking placards, air fresheners, and the like from my rear-view mirror.

State agencies — and some Vermont courts— have taken the position that a police officer can pull you over for hanging anything from a rear-view mirror.  Such violations can lead to bigger legal problems when you are driving after having a few drinks, with a suspended license, or with no proof of insurance.

The Vermont law is entitled Obstructing Windshields and states in part as follows:

“[n]o person shall paste, stick, or paint advertising matter or other things on or over any transparent part of a motor vehicle windshield, vent windows, or side windows located immediately to the left and right of the operator, nor hang any object, other than a rearview mirror, in the back of the windshield except as follows…”  23 V.S.A. § 1125 (emphasis added).

After a cursory review, it makes sense to interpret this law as prohibiting items that obstruct a windshield or a driver’s view; however, the State has successfully argued that the law says that nothing should hang from a rear-view mirror.  This interpretation reads the law literally, according to its terms.  State v. Berger, No. 1035-8-11 Frcr (Vt. Super. Ct. May 2, 2014).  Unless the Vermont legislature changes the law, this interpretation prohibits anything— other than a rear view mirror—from hanging from the back of the windshield.

Luckily (for us who keep their parking placards where they were designed to hang), Vermont’s courts disagree and, in 2013, the Federal District of Vermont provided a temporary resolution.   U.S. v. Chin, No. 5:13-cr-28, 2013 U.S. Dist. LEXIS 13801, *13-21, 2013 WL 5406239 (D. Vt. September 26, 2013).  Chief Judge Christina Reiss suggested that the law is ambiguous because Vermont courts have reached divergent conclusions regarding its proper interpretation; therefore, the law should be interpreted favor of those accused of violating it, under the rule of lenity.  Id. at *15-19.  In circumstances where the law is ambiguous, Judge Reiss stated “…the tie must go to the defendant.”  Id.

Until the Vermont Supreme Court says otherwise, it is cheaper to avoid a traffic stop altogether by not hanging anything from a rear-view mirror, than to consult a lawyer.  Yet, it seems unreasonable not to place a lawful object exactly where it should go, especially when the driver’s view is unobstructed.

As summer approaches, Vermont lakes and ponds are patrolled by marine law enforcement units from the U.S. Coast Guard, State Police, as well as local police.  Many towns and sheriff’s departments that have lakes or ponds within their jurisdiction have police boats in order to detect boating under the influence of alcohol or drugs, commonly known as BWI or BUI.

It is a crime in Vermont to operate a “vessel” under the influence of intoxicating liquor or under the influence of a drug.

See 23 V.S.A. § 3323(a)(2)+(3)Unlike the definition of a “motor vehicle” for DUI purposes, a “vessel” not only includes a motorboat, but also non-motorized water craft such as a sailboat or canoe.  See 23 V.S.A. § 3302(12).  Often times marine law enforcement officers will investigate a boating accident with an eye towards determining whether the captain or operator of the boat was operating under the influence of alcohol or drugs.  However, sometimes a police boat will stop a vessel if there is an issue with the watercraft’s lights, while operating at night, or simply for a Coast Guard safety inspection.

A distinction between BUI/BWI and DUI/DWI is found in the suspension period upon a conviction for a violation.  For example, the suspension period for a first offense DUI is a 90 day suspension.  However, the suspension period for a conviction of a first offense BUI/BWI is for one year.  The reason for the distinction is probably found in the relatively short boating season in Vermont.  If a boater were to be convicted of BUI in September, they would probably not be too concerned about not having their privilege to operate a boat suspended during the fall or winter months.  Thus, a one-year suspension for a BUI/BWI carries the “penalty” over into the next boating season.

We recommend that no one drink and operate a boat at the same time.  However, if you find yourself charged with BUI or BWI (these terms are often used interchangeably) please call criminal defense attorney Doug Kallen 24/7/365 at (802)598-7686.

In Vermont, drug defense cases are prosecuted in both Federal as well as State Courts.

As a general rule, larger-scale drug distribution conspiracies are prosecuted in Federal Court while drug possession is ordinarily prosecuted in State Court. However, there are exceptions to this general rule. Sometimes, persons can be charged with sale of drugs in State Court. Possession of a large quantity of drugs can often land someone in Federal Court. At BP&F, we aggressively represent clients charged with Narcotic Offenses in both Federal and State Court.

When defending any drug case, whether in Federal or State Court, the first thing we do is take a hard look at the police procedures to make sure that our client’s Constitutional Rights were scrupulously upheld by the Police Officer or Drug Agent. Since Vermont is a border State, we are often presented with the varying legal issues which accompany allegations of drug smuggling. Often times, drug arrests happen in the middle of the night or on a weekend.

At BP&F, we have an experienced criminal defense attorney available 24/7 at 802-598-7686 to provide you with real-time legal advice concerning your narcotics arrest. Frequently, when people are arrested carrying drugs, or large amounts of cash, drug officers will often put pressure on the person to quickly cooperate or else face more serious consequences. The decision to cooperate is a complex legal decision which requires the assistance of experienced criminal defense counsel which you will find at BP&F. So, whether you are charged with Possession or Sale of OxyContin, Cocaine, Methamphetamine, Heroin, or Marijuana, we stand ready 24/7 to provide you with strong legal assistance.

Vermont has very strict laws against driving under the influence of alcohol, commonly known as DUI.

Many states only prohibit driving while intoxicated. However, Vermont is among the States that makes it a crime to drive while under the influence of alcohol. In other words, you do not have to be drunk to be charged with DUI in Vermont. In fact, the Vermont Supreme Court has defined the crime of DUI as operating a motor vehicle on a public highway under the influence of alcohol “to the slightest degree”.

 

In Vermont, persons generally are considered to be under the influence of alcohol when their alcohol concentration is .08% or more. However, the so-called .08 standard can vary depending upon the age and type of vehicle that a person is driving. For example, if a person is driving a commercial motor vehicle such as a truck, the BAC standard is .04%. Furthermore, if a person is driving a school bus, the standard drops to .02% BAC. Finally, if a motorist is under 21, and therefore not legally able to drink, the so called zero-tolerance law, prohibits an underage drinker from driving with a BAC above .02%.

At BP&F, we stand ready to aggressively represent you in any DUI case. Even a social drinker, can have a few too many and find themselves pulled over on the side of the road with blue lights flashing behind them. We carefully examine whether the police officer followed all rules and regulations required during a DUI stop and processing, and we will attack the State’;s case if any of the required elements of the crime are lacking. Often times we will work with a forensic chemist to see if your BAC can relate back to less than .08%. Many police cruisers in Vermont have video recorders, and we often find that our clients’ best evidence is the police video showing our clients’ performance on the field sobriety tests. In short, we are not shy about zealously fighting for our clients rights, in order to achieve the best result possible in Court for you.

Has the mom who slapped her 5-year-old son on the hand, to keep him from touching a hot stove, committed the crime of Domestic Assault? Has the dad who slapped his mouthy teenage daughter in the face after she just used the “f” word, guilty of Domestic Assault? Surprisingly, the answers to these fairly common family encounters are found in a very murky area of case law in Vermont.

Statutory Analysis

When the police are called to a family domestic disturbance, the crimes of Domestic Assault as proscribed in 13 V.S.A. Subchapter 6 (Misdemeanors and Felonies) come into play. There is no statutory exception or defense for corporal punishment in Vermont for Domestic Assaults. Therefore, many police officers take the position that if there is no statutory defense of corporal punishment, that they will arrest a parent who engages in physical discipline of their child. Similarly, some prosecutors take the position that since our legislature has not seen fit to create a statutory defense of corporal punishment, that if there is a complaint brought to the attention of the authorities, the crime of Domestic Assault has been committed, without regard to a parent’s historical “right” to use corporal punishment on their child. Thus, the criminal defense lawyer in Vermont is often presented with an inconsistent pattern of enforcement of the domestic assault statutes, as applied to parents who may use corporal punishment on their children, depending upon the particular practices of the police agency or the State’s Attorney’s Office involved. This means that the practitioner must then look to case law to see how our District Courts, and more importantly, our Supreme Court have dealt with this nebulous area of law.

Case Law

Vermont Supreme Court Cases

There are two relatively recent Vermont Supreme Court cases which address a parent’s use of corporal punishment as a defense to a criminal charge of Domestic Assault. A review of these two cases reveals that our Supreme Court tends to side-step the outright endorsement or rejection of the defense of corporal punishment, instead preferring to decide the cases on other grounds. A discussion of these two Vermont Supreme Court cases, State v. Martin and State v. Barron appears below.

In State v. Martin, 170 Vt. 614, 751 A.2d 769 (2000), our Supreme Court opined that, “Because of the natural relation of parent and child, a parent, unquestionably, is answerable only for malice or wicked motives or an evil heart in punishing his child”. See Martin, supra, at p. 616. The Supreme Court then went on to hold that the trial court’s jury instruction on corporal punishment was an appropriate jury instruction. The District Court’s actual instruction on corporal punishment, which the Supreme Court ruled was not error, was as follows:

“The law recognizes that a parent does not commit an assault by inflicting corporal punishment on a child within the parent’s custody or parental control providing the parent remains within the following legal limits of exercise of that authority. Under the law, the parent has a right to inflict corporal punishment on a child subject to his disciplinary control provided the punishment is motivated by a corrective purpose and not by anger, that it is not inflicted upon frivolous pretenses, that is not excessive or otherwise unreasonably inflicted, or that it is not cruel or merciless”. See Martin, supra, at p. 615.

In State v. Barron, 176 Vt. 314, 848 A.2d 275 (2004), the Vermont Supreme Court held that in parent-on-child assaults, that “The State must prove bodily injury as defined in 13 V.S.A. § 1021(1), and need not apply a different and higher standard contained in 33 V.S.A. § 4912. See Barron, supra, at p. 319. The Supreme Court then ruled that the District Court erred in requiring the prosecution to prove the higher standard of injury in response to a V.R.Cr.P. 12(d) Motion to Dismiss. However, the Supreme Court went on to note that because, “The District Court did not rule on Defendant’s claim that he is entitled to a corporal punishment defense, we [Supreme Court] decline to address that issue in advance of the District Court”. See Barron, supra, at p. 319. Therefore, our Supreme Court neither endorsed nor rejected the availability of a corporal punishment defense to a charge of Domestic Assault in its decision in the Barron case.

The defense attorney should always cite the Martin case in a Motion to Dismiss Pursuant to V.R.Cr.P. 12(d), and make the argument that obviously if the Supreme Court did not believe that there was a defense of corporal punishment in Vermont, then it would have stated that in the Martin case, instead of ruling that the District Court’s instruction on corporal punishment, was “not error”. Often times the prosecutor will argue the Barron case for the proposition that there is no defense of corporal punishment in Vermont. However, a close reading of the Barron case, reveals that our Supreme Court did not reject the doctrine of corporal punishment, or overrule the Martin case, but instead rejected the trial court’s decision that the State had to prove the higher standard of injury contained in 33 V.S.A. § 4912 in parent-on-child assault cases. Defense attorneys should use the trial court’s jury instruction on corporal punishment from the Martin case, in Motions to Dismiss Pursuant to V.R.Cr. P. 12(d), as well as at any trials in District Court where the defense of corporal punishment should be invoked on behalf of a parent.

District Court Decisions

Our District Courts have dismissed cases involving parental use of corporal punishment. In State v. Jeffrey Reed, Docket Nos. 49-1-95 BnCr and 35-1-95 BnCr, the evidence showed that the Defendant slapped three of his girlfriend’s children in their faces when they would not be quiet. In spite of the fact that the Defendant was not a parent, the District Court opined on page 5 of its Decision that, “This conduct does not show a gross deviation in the standard of care exhibited by law abiding persons under similar circumstances. The general rule for corporal punishment is that “it may be used to discipline a child provided that the punishment is reasonable and not excessive”, [citing] State v. Lembesis, Docket No. 451-1-95 CnCr (Chittenden District Court, April 12, 1995)”. Indeed, in the Lembesis case the Honorable Amy Davenport, in a case where the Defendant was charged with Domestic Assault for spanking his 13 year old daughter four times on her buttocks, held as follows:

“There is no law in Vermont that prohibits a parent from using reasonable corporal punishment to discipline his child. See 33 V.S.A. § 3503; 16 V.S.A §1161(a). Indeed, the general rule is that a parent may use corporal punishment to discipline a child if that punishment is reasonable and not excessive. See In re W.G., 349 N.S.2d 487, 488 (Iowa1984); State v. Thorpe, 429 A.2d 785, 788 P.2d 208, 222 (Az. Ct. App. 1965); see also 59 Am Jun 2d Parent and Child, § 22 (collecting cases). Corporal punishment is excessive when a parent acts “immoderately, cruelly or mercilessly and with a malicious desire to inflict pain,” Hunt, 406 P.2d at 222; see also Thorpe, 429 A.2d at 788, or when it is designed to create a substantial risk of death, serous bodily injury, disfigurement, extreme pain or mental distress or degradation. N.B. v. Commonwealth Dep’t. of Public Welfare, 527 A.2d 623, 625 (Pa. 1987).

In State v. Suzanne Gilbert, Docket No. 927-7-01 WnCr, the Defendant struck her 14 year old daughter on her forehead “during an angry exchange between the mother and the daughter after the child made what the mother viewed as an inappropriate comment”. See State v. Gilbert, Supra, at p.1. The District Court dismissed the State’s case in a written decision arising from the Defendant’s Motion to Dismiss pursuant to V.R.Cr.P 12(d).

Conclusion

Perhaps the reason why the Vermont Supreme Court has neither directly endorsed nor rejected the long standing doctrine of corporal punishment, is because the Court is hoping that the legislature will deal with that issue within the statutory definitions found in 13 V.S.A. Chapter 19, Subchapter 6 (Domestic Assaults). On the other hand, it appears unlikely that our legislature will ever want to deal with the thorny issue of corporal punishment, since the entire concept of a parent’s use of corporal punishment involves such underlying social issues relating to socio-economic status, class, education, and even rural vs. suburban child-rearing practices. Many self-described enlightened parents, including the author of this article, would never use corporal punishment on their child, preferring instead to discipline their children with time-outs and loss of privileges. However, some conservative and traditional parents see nothing wrong with using corporal punishment as a method of parental discipline. Regardless of what one thinks about the use of corporal punishment as a disciplinary tool, police officers, prosecutors, defense attorneys, judges and more importantly, Vermont parents, need to know whether or not reasonable corporal punishment is an exception or defense to our Domestic Assault statutes, which should be plainly spelled out in Title 13, rather than having to resort to case law which has been somewhat unsettled in our State.