BPF Legal - Burlington, Vermont Attorneys

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Drug Defense in Vermont

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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

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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.

Change Has Come…

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To the Americans with Disabilities Act and to the Family Medical Leave Act

In the early 1990’s, two major pieces of employment legislation were passed by Congress – the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”). In 2008, Congress and the Department of Labor made significant changes to the ADA and the FMLA. The changes to the ADA go into effect on January 1, 2009, and the changes to the FMLA go into effect on January 16, 2009.

FMLA

The FMLA changes are extensive, and will require employers to make both policy and procedural changes. The new FMLA regulations involve significant changes in the manner in which employees are notified of their FMLA rights, how paid time off interfaces with unpaid FMLA leave, and how medical certifications and fitness for duty certifications are reviewed or required. These new rules may necessitate changes in various policies your company already has, including: paid time off; compensation policies (including bonuses that relate to attendance); light duty policies; policies and procedures for notifying employees of FMLA rights and designating leave as FMLA leave; and processes for obtaining medical certification, receiving follow up medical information, and obtaining fitness for duty documentation.

The new FMLA regulations also create a new category of leave regarding military family leave entitlements. These entitlements can be summarized as follows:

  • Up to 12 weeks of leave for certain qualifying exigencies arising out of a covered military member’s active duty status, or notification of an impending call or order to active duty status, in support of a contingency operation; and
  • Up to 26 weeks of leave in a single 12-month period to care for a covered service member recovering from a serious injury or illness incurred in the line of duty while on active duty. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave during the single 12-month period.

You can learn more about the FMLA changes and the new regulations by going to the website specifically set up by the DOL to inform the public of the final regulations, at http://www.dol.gov/esa/whd/fmla/finalrule.htm. A fact sheet is available through the site which highlights some of the changes. There will also be new forms relating to the grant of FMLA leave and to the medical certifications. Those revised forms can be obtained by downloading a copy of the final rule.

ADA

The changes to the ADA will likely require less in the way of policy change. However, they will require a change in the process by which an employee’s assertion of ADA coverage should be evaluated, and whether reasonable accommodations are necessary. The ADA changes were prompted by a number of Supreme Court decisions which Congress perceived to be narrowing the intended scope of the ADA. The most significant ADA changes are as follows:

    • The EEOC was charged with revising its ADA regulations that define the term “substantially limits” to clarify the broader meaning of that term originally intended by Congress;
  • The definition of the term “major life activities” was expanded by including two non-exhaustive lists:
  • § the first list includes activities that the EEOC has already recognized (such as walking) as well as activities that EEOC has not specifically recognized (such as reading, bending, and communicating);
  • § the second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
  • The amendments clarify that an “impairment” that is episodic or in remission is a “disability” if it would substantially limit a major life activity when active;
  • The amendments state that “mitigating measures” (such as medication, prosthetics, etc.) other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
  • The new law provides that an individual subjected to an action prohibited by the ADA (such as failure to hire or promote) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is transitory and minor. In addition, the amendments provide that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and
  • The new law makes clear that the definition of “disability” should be interpreted broadly, which will likely result in the application of the ADA’s protections to a larger number of employees.

These are just highlights of the new laws and regulations in these major areas. The specific applications of these mandates to your company and to your policies and procedures cannot be fully explained in this one article. However, it should be the subject of some self-examination by your Human Resources and Management teams The Labor and Employment Law team at Bergeron, Paradis and Fitzpatrick, LLP has already drafted revisions to various common employment policies relating to these changes in the law. We would be happy to assist your company, either by answering any questions you have about how these changes will impact your business, or by helping you to update your current personnel policies and practices. We look forward to working with you.

BP&F is not rendering any legal, accounting or other professional opinions by way of the above article.

While BP&F has exercised reasonable care to ensure the accuracy of the information, no representation or warranty is made as to such accuracy. Due to the rapidly changing nature of the law, information contained in this article may become outdated. In no event is BP&F liable for any direct, indirect, consequential or other damages resulting from and/or related to the use of this article. If you would like to speak with a BPF attorney about the subject matter of this article, please contact us at 802.863.1191.

Owner’s Title Insurance and its Role in the Purchase of Real Property

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The purchase of real property is one of the more expensive investments that our clients make.

At the time of closing, non-discretionary closing expenses such as transfer taxes, bank fees, mortgage title insurance and appraisal costs significantly add to the upfront costs to be paid by the purchaser at closing. One discretionary expense is the purchase of an owner’s title insurance policy. The owner’s title policy is a one-time charge that is not required as a condition of loan closing by any lender financing the transaction.

Often clients will ask if it is really necessary to purchase an owner’s title insurance policy given that a title search of the property will be conducted prior to the closing. Our experience has been that it is always wise to purchase an owner’s title policy to protect your investment as there are numerous times when even a properly conducted title search will not uncover a problem that will likely lead to a claim against the property. In most instances, these claims are covered by an owner’s title policy. Coverage from suit in these claims can protect you as the owner against the reduction in value of the property due to an undisclosed encumbrance or costly legal expense in the defense of your property or enforcement of your property rights.

It has been my experience that title claims against real estate are so varied that it is impossible to anticipate in advance of purchase if a property may later be subject to a title claim. Bergeron Paradis & Fitzpatrick represents a leading title insurance company in Vermont. Three recent examples of actual title insurance claims that we have defended demonstrate the varied nature of real estate title claims.

The first of these claims involved a judgment creditor who attempted to foreclose a judgment lien filed in the land records against the property owner claiming the lien had priority over a later recorded first mortgage. The owner’s name was “Bayley” but the court, in issuing the judgment lien, spelled the owner’s name as “Bailey”. The error was not noticed and the judgment lien was recorded under the name “Bailey” in the land records. In conducting a title search, the title searcher did not discover the lien due to the different spelling. Recently, the Vermont Supreme Court upheld a lower court decision striking down the priority of the judgment lien over the priority of the bank mortgage, holding that a title searcher “should not be expected to do the work of poets, phonetic linguists, or multilingual specialists” as such a requirement would be an unfair burden. Lively v. Northfield Savings Bank, et al, No. 2007-165, October 5, 2007.

The second of these claims involved the foreclosure of an undischarged mortgage on the property of the owner. In 2004 the owner had purchased property for use as his primary residence. Prior to closing, a title search revealed the presence of a substantial first mortgage on the property. At the closing, the bank holding the existing mortgage erroneously advised that the payoff was only a few thousand dollars as the bank reported a payoff on the wrong loan of the record owner. This amount was paid and the remainder disbursed to the Seller of the property who retained the proceeds instead of paying off the actual mortgage loan balance. Three years later, the new owner of the property was sued for foreclosure by the bank on their priority first mortgage.

The third example involved an easement to use a common lakeshore lot in a development as access for swimming and boating purposes. The property owner’s deed specifically provided that the lot had the benefit of the easement over the lakeshore lot for access. The lakeshore lot was sold to a third party who immediately commenced construction on the lot, denying the lot owners with deeded access to the lot enjoyment of their rights.

In all these instances, the owners, at the time of closing, purchased an owner’s title insurance policy. In each instance, the title insurance company immediately stepped in to defend the claims of the owners at considerable expense. What is significant about these actual claims is that they are not claims that could have been avoided by conducting a title search on the property. In the first claim, considerable expense was incurred in defending the owner’s priority first mortgage against the judgment lien, with the case ultimately being appealed to the Vermont Supreme Court. In the second claim, the title company was required to pay off the previous first mortgage in order to protect the owners from foreclosure. In the third claim, the title company was required to defend the right of the property owner to enjoy the benefits of the deeded lakeshore easement for which an owner’s title policy had been secured.

When comparing the cost of title insurance to the cost of defending any of these claims, it is readily apparent that the protection offered by an owner’s title policy is a good investment.

The Law of Corporal Punishment in Vermont

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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.

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