Criminal Law Archives - BPF Legal - Burlington, Vermont Attorneys

Laws That Get in the Way: Traffic Stops Based on Windshield Obstructions

September 10, 2015 by Adam Bergeron Leave a Comment

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.

Appealing a DCF Substantiation of Abuse or Neglect

January 6, 2015 by Jeff Messina Leave a Comment

The Vermont Department of Children & Families (DCF) Family Services Division investigates reports of child abuse or neglect and is required by law to determine whether the actions reported should be substantiated. A substantiated report means DCF decides the report is based on what it considers accurate and reliable information that “would lead a reasonable person to believe the child has been abused or neglected.”

Anyone substantiated for child abuse or neglect may challenge the decision, and the law provides opportunities for review after a recommendation of substantiation. The first chance for review is from an independent reviewer; the second is a Fair Hearing; and, finally, in some cases, review by the Vermont Supreme Court.

People substantiated on or after September 1, 2007, have the right to request a review to challenge the substantiation before their name is placed on the Child Protection Registry (Registry). If substantiated, DCF will send a letter stating it intends to add the name to the Registry, and that the individual has the right to request an independent review within 14 days of when the letter was mailed. If a request for independent review is not made within the allotted time, the name is added to the Registry, DCF’s decision is final, and any further right of review is lost.

Upon a timely request for independent review of the substantiation, DCF will provide the time and place of the review, the review procedures – including ways to submit information for the independent reviewer to consider – along with copies of most of the investigation documents DCF relied on to recommend the substantiation.

After holding the independent review, the reviewer has three options: he or she may (1) reject or overturn the substantiation; (2) uphold the substantiation; or, (3) place it on hold and direct DCF to investigate further. Notification of the decision is provided. If the independent reviewer upholds the substantiation, the record will immediately be added to the Registry. Should that occur, the law presents the right to appeal the decision to the Human Services Board (Board). There is a deadline to request this appeal, and if missed, any further right to review is lost.

The appeal to the Board is basically a trial (called a Fair Hearing), though it is not held in a courtroom by a judge, but rather a conference room in a State building by a Hearing Officer. During this Fair Hearing, the State will produce witnesses, experts and other evidence in an attempt to prove its determination of substantiation was justified. Opportunity is given to cross-examine the State’s witnesses and experts, and bring independent witnesses and experts to show the substantiation was not reasonable, or justified. It is important to realize, however, that the State will be able to cross-examine those witnesses and experts. In addition, the accused has the opportunity to testify; though, the State can ask questions.

Much like the independent reviewer, the Hearing Officer may reject or overturn the substantiation; or, (2) uphold the substantiation. The Hearing Officer will give his recommendation to the entire Board, which then decides whether or not to overturn or uphold the substantiation. If the substantiation is upheld, there may be one last opportunity to appeal the decision: a petition to the Vermont Supreme Court. While the Court might grant the petition and hear the matter, new evidence is not presented. The issues are relegated only to matters of law.

Where a charge of abuse or neglect is substantiated, the individual’s name is placed on the Registry for at least three (3) years if the designated child protection level is 2 or if substantiated before age 18. If the designated child protection level is 1, the name remains on the Registry for at least seven (7) years. Being placed on the Registry may have serious consequences. It could limit the ability to have contact with children – any children – and may limit job opportunities, in addition to other costs.

The DCF substantiation process is complex and time consuming. It usually involves the police and States’ Attorneys, as well as doctors, social workers, and The Office of The Attorney General. The entire incident can be very stressful, with real consequences for entire families that can last for many years. The experienced attorneys at Bergeron, Paradis & Fitzpatrick, LLP, can assist in every step of this complicated process – from the initial investigation through and including each stage of the appeals process.

Boating Under the Influence ( BWI / BUI )

July 22, 2014 by Doug Kallen Leave a Comment

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.

Drug Defense in Vermont

April 25, 2011 by Doug Kallen

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.

DUI in Vermont

April 25, 2010 by Doug Kallen

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.