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					AS PASSED BY HOUSE/HOUSE PROPOSAL                                             S.324
2000                                                                         Page 1


                          House Proposal of Amendment

                                        S. 324

   An act relating to criminal and civil procedures involving alcohol and motor

vehicle violations.

   The House proposes to the Senate to amend the bill by striking all after the

enacting clause and inserting in lieu thereof the following:

Sec. 1. 1 V.S.A. § 551 is amended to read:

§ 551. CONCURRENT JURISDICTION RESERVED

   When, pursuant to article one, section eight, clause seventeen of the

Constitution of the United States, consent to purchase is given and exclusive

jurisdiction ceded to the United States in respect to and over any lands within

this state which shall be acquired by the United States for the purposes

described in such clause of the Constitution, such jurisdiction shall continue so

long as the lands are held and occupied by the United States for public

purposes; but concurrent jurisdiction is reserved for the execution upon such

lands of all process, civil or criminal, issued by the courts of the state and not

incompatible with the cession, and for the enforcement of state law in the

federal enclave along the border of Canada and Vermont by law enforcement

officers certified under section 2358 of Title 20. The deed or other conveyance

of such land to the United States shall contain a description of such lands by

metes and bounds and shall be recorded in the town clerk's office of the town



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in which such lands lie or an accurate map or plan and description by metes

and bounds of such lands shall be filed in such clerk's office.

Sec. 2. 3 V.S.A. § 163 is amended to read:

§ 163. JUVENILE COURT DIVERSION PROJECT

                                      ***

   (e) The requirements of subdivisions (c)(1), (2), (3), and (4) of this section

shall not apply to mandatory conditions imposed by the diversion board,

following an adjudication of a civil violation pursuant to section 656 of Title 7.

Subdivision (c)(5) of this section shall not restrict the diversion board from

notifying the commissioner of motor vehicles that a person has failed to timely

complete imposed conditions. The diversion board may disclose all relevant

information about a person in an administrative or judicial proceeding related

to whether a suspension is proper.

   (f) Subject to the approval of the attorney general, the Vermont association

of court diversion programs may develop and administer programs to assist

persons under this section charged with delinquent, criminal and civil offenses.

Sec. 3. 3 V.S.A. § 164 is amended to read:

§ 164. ADULT COURT DIVERSION PROJECT

                                      ***

   (i) The requirements of subdivisions (c)(1), (2), (3), and (4) of this section

shall not apply to mandatory conditions imposed by the diversion board



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following an adjudication of a civil violation pursuant to subdivision 656 of

Title 7. Subdivision (c)(5) of this section shall not restrict the diversion board

from notifying the commissioner of motor vehicles that a person has failed to

timely complete imposed conditions. The diversion board may disclose all

relevant information about a person in an administrative or judicial proceeding

related to whether a suspension is proper.

   (j) Subject to the approval of the attorney general, the Vermont association

of court diversion programs may develop and administer programs to assist

persons under this section charged with delinquent, criminal and civil offenses.

Sec. 4. 4 V.S.A. § 437 is amended to read:

§ 437. CIVIL JURISDICTION OF DISTRICT COURT

   The district court shall have jurisdiction of the following actions:

                                       ***

      (8) Automobile forfeiture and immobilization proceedings under chapter

9 of Title 23.

Sec. 5. REPEAL

   4 V.S.A. § 1101 is repealed.

Sec. 6. 4 V.S.A. § 1102 is amended to read:

§ 1102. JUDICIAL BUREAU; JURISDICTION

   (a) A judicial bureau is created within the judicial branch under the

supervision of the supreme court.



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   (b) The judicial bureau shall have jurisdiction of the following matters:

        (1) traffic violations alleged to have been committed on or after July 1,

1990;

        (2) civil ordinance violations alleged to have been committed on or after

July 1, 1994;

        (3) minor fish and wildlife violations alleged to have been committed on

or after September 1, 1996;

        (4) for violations of 7 V.S.A. § 1005(a), relating to possession of

tobacco products by a person less than 18 years of age; and

        (5) for violations of 7 V.S.A. § 1007, relating to furnishing tobacco

products to a person under the age of 18 years. ;

        (6) violations of 24 V.S.A. § 2201, relating to littering and illegal

dumping;

        (7) violations of 7 V.S.A. § 656, relating to illegal possession of

alcoholic beverages.

   (c) The judicial bureau shall not have jurisdiction over municipal parking

violations.

   (d) Three hearing officers appointed by the court administrator shall

determine waiver penalties to be imposed for violations within the judicial

bureau’s jurisdiction, except that municipalities shall adopt full and waiver

penalties for civil ordinance violations pursuant to section 1979 of Title 24.



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For purposes of municipal violations, the issuing law enforcement officer shall

indicate the appropriate full and waiver penalty on the complaint.

Sec. 7. 4 V.S.A. § 1105 is amended to read:

§ 1105. ANSWER TO COMPLAINT; DEFAULT

   (a) A violation shall be charged upon a summons and complaint form

approved and distributed by the court administrator. The complaint shall be

signed by the issuing officer or by the state's attorney. The original shall be

filed with the judicial bureau, a copy shall be retained by the issuing officer or

state's attorney and two copies shall be given to the defendant. The complaint

shall include a statement of rights, instructions, notice that a defendant may

admit, not contest, or deny a violation, and other notices as the court

administrator deems appropriate. The court administrator, in consultation with

appropriate law enforcement agencies, may approve a single form for charging

all violations, or may approve two or more forms as necessary to administer

the operations of the judicial bureau.

   (b) A person who is charged with a violation shall have 20 days from the

date the complaint is issued to admit or deny the allegations or to state that he

or she does not contest the allegations in the complaint.

   (b)(c) A person who admits or does not contest the allegations may so

indicate and sign the complaint. The bureau shall accept the admission or




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statement that the allegations are not contested and accept payment of the

waiver penalty.

   (c)(d) If the person sends in the amount of the waiver penalty without

signing the complaint, the bureau shall accept the payment indicating that

payment was made and that the allegations were not contested.

   (d)(e) A person who denies the allegations may so indicate and sign the

complaint. Upon receipt, the bureau shall schedule a hearing.

   (e)(f) If a person fails to appear or answer a complaint the bureau shall

enter a default judgment against the person. The bureau shall mail a notice to

the person that a default judgment has been entered. A default judgment may

be set aside by the hearing officer for good cause shown.

Sec. 8. 7 V.S.A. § 656 is added to read:

§ 656. MINORS MISREPRESENTING AGE OR PROCURING OR

       POSSESSING LIQUORS; FIRST OFFENSE; CIVIL VIOLATION

   (a) A minor sixteen years of age or older shall not:

      (1) falsely represent his or her age for the purpose of procuring malt or

vinous beverages or spirituous liquor from any licensee, state liquor agency, or

other person or persons;

      (2) possess malt or vinous beverages or spirituous liquor for the purpose

of consumption by himself or herself or other minors, except in the regular




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performance of duties as an employee of a licensee licensed to sell alcoholic

liquor; or

      (3) consume malt or vinous beverages or spirituous liquors. A violation

of this subdivision may be prosecuted in a jurisdiction where the minor has

consumed malt or vinous beverages or spirituous liquors, or in a jurisdiction

where the indicators of consumption are observed.

   (b) A law enforcement officer shall issue a summons and complaint to the

judicial bureau pursuant to chapter 29 of Title 4 for a violation of this section if

the person has not previously been adjudicated in violation of this section or

convicted of violating section 657 of this title.

   (c) A person who violates this section commits a civil violation and shall

be subject to a civil penalty of not more than $300.00. The state may obtain a

violation under this section or a conviction under section 657 of this title, but

not both.

   (d) If a person fails to pay a penalty imposed under this section by the time

ordered, the judicial bureau shall notify the commissioner of motor vehicles,

who shall suspend the person’s operator’s license and privilege to operate a

motor vehicle until payment is made.

   (e) Upon adjudicating a person in violation of this section, the judicial

bureau shall notify the commissioner of motor vehicles, who shall maintain a

record of all such adjudications which shall be separate from the registry



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maintained by the department for motor vehicle driving records. The identities

of persons in the registry shall only be revealed to a law enforcement officer

determining whether the person has previously violated this section.

   (f) Upon adjudicating a person in violation of this section, the judicial

bureau shall notify the teen alcohol safety program of the diversion board in

the county where the violation occurred. Pursuant to the teen alcohol safety

program, the diversion board shall impose appropriate conditions, which shall

include a condition requiring satisfactory completion of alcohol screening and,

if deemed necessary, alcohol counseling and therapy. The diversion board

may also impose conditions requiring the person to complete community

service projects and educational programs related to alcohol. The person shall

complete all conditions at his or her own expense. The diversion board shall

allow a person at least 60 days to complete required conditions. If a person

does not satisfactorily complete alcohol screening by a licensed professional

and, if deemed necessary, alcohol counseling and therapy, the diversion board

shall notify the commissioner of motor vehicles, who shall suspend the

person’s operator’s license and privilege to operate a motor vehicle until notice

of compliance from the diversion board is received. If a person does not

timely complete other required conditions of diversion, the diversion board

shall notify the commissioner of motor vehicles, who shall suspend the

person’s operator’s license and privilege to operate a motor vehicle for 30



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days. A person aggrieved by a decision of the diversion board or alcohol

counselor may seek review of that decision pursuant to Rule 75 of the Vermont

Rules of Civil Procedure.

   (g) The state’s attorney may dismiss without prejudice a violation brought

under this section.

Sec. 9. 7 V.S.A. § 657 is amended to read:

§ 657. MINORS MISREPRESENTING AGE OR PROCURING OR

        POSSESSING LIQUORS; ALCOHOL AND DRIVING EDUCATION

   (a) A minor who shall not:

      (1) falsely represent his or her age for the purpose of procuring or who

procures malt or vinous beverages or spirituous liquor from any licensee, state

liquor agency, or other person or persons; or who possesses

      (2) possess malt or vinous beverages or spirituous liquor for the purpose

of consumption by himself or herself or other minors, except in the regular

performance of duties as an employee of a licensee licensed to sell alcoholic

liquor, ; or

      (3) consume malt or vinous beverages or spirituous liquors. A violation

of this subdivision may be prosecuted in a jurisdiction where the minor has

consumed malt or vinous beverages or spirituous liquors, or in a jurisdiction

where the indicators of consumption are observed.




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   (b) A law enforcement officer shall issue a citation for a violation of this

section if a person has been previously adjudicated in violation of this section

or section 656 of this title.

   (c) After the issuing officer issues a summons and complaint to the judicial

bureau for a first offense pursuant to section 656 of this title, the state’s

attorney may withdraw the complaint filed with the judicial bureau and file an

information charging a violation of this section in district court. The state may

obtain a conviction under either this section or section 656 of this title, but not

both.

   (d) A person who violates this section shall be fined not more than $500.00

$600.00 or imprisoned not more than thirty 30 days, or both.

   (e) The state's attorney may require as a condition of diversion that a

person who is charged with a violation of this section who holds a license to

operate a motor vehicle shall attend an alcohol and driving program at the

person's own expense.

   (f) A person who is convicted of violating this section who holds a license

to operate a motor vehicle shall, as a condition of probation, be required to

complete an alcohol and driving program at the person's own expense.

   (g) The alcohol and driving program shall be administered by the office of

alcohol and drug abuse programs and shall take into consideration the needs of

minors.



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   (h) The state’s attorney may dismiss without prejudice an action brought

under this section, and may file a civil violation in the judicial bureau.

Sec. 10. 8 V.S.A. § 4674 is amended to read:

§ 4674. CONVICTIONS

   (a) The commissioner may by rule specify motor vehicle and criminal

violations, conviction of any of which may be used as a basis for a surcharge.

   (b) Notwithstanding subsection (a) of this section, only those motor vehicle

violations that occurred during the experience period may be used as a basis

for a surcharge.

   (c) An adjudication under section 656 of Title 7 may not be used as a basis

for a surcharge.

Sec. 11. REPEAL

   10 V.S.A. § 4573 is repealed.

Sec. 12. 23 V.S.A. § 676 is amended to read:

§ 676. OPERATION AFTER SUSPENSION, REVOCATION OR

       REFUSAL--CIVIL VIOLATION

                                       ***

   (c) For purposes of establishing the state’s case-in-chief against a person

accused of violating this section, the judicial bureau shall accept as evidence an

affidavit from an employee of the agency of transportation stating that the

person’s operator’s license or privilege to operate was suspended or revoked



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on the date of the offense, and the reason or reasons for the suspension or

revocation. The admitted affidavit shall establish a permissive inference that

the person was under suspension or had his or her license revoked on the dates

and time periods set forth in the affidavit. The judicial bureau shall not require

a certified copy of the person’s motor vehicle record from the department of

motor vehicles to establish the permissive inference.

Sec. 13. 23 V.S.A. § 801 is amended to read:

§ 801. PROOF OF FINANCIAL RESPONSIBILITY REQUIRED

   (a) The commissioner shall require proof of financial responsibility to

satisfy any claim for damages, by reason of personal injury to or the death of

any person, of at least $25,000.00 for one person and $50,000.00 for two or

more persons killed or injured and $10,000.00 for damages to property in any

one accident, as follows:

       (1) From a person who is convicted of any of the following violations of

this title:

              (A) Death resulting from:

                (i) Careless and negligent operation of a motor vehicle, or

                (ii) Reckless driving of a motor vehicle.

              (B) Operating or attempting to operate a motor vehicle while under

the influence of intoxicating liquor or drugs Any violation of section 1201 of

this title or for any suspension pursuant to section 1205 of this title;



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         (C) Failing to immediately stop and render such assistance as may be

reasonably necessary following an accident resulting in injury to any person or

property, other than the vehicle then under his or her control;

         (D) Operating, taking, using or removing a motor vehicle without the

consent of the owner;

         (E) Operating a motor vehicle after suspension, revocation or refusal

of a license, in violation of section 674 of this title;

         (F) Operating without financial responsibility;

                                        ***

Sec. 14. 23 V.S.A. § 1203 is amended to read:

§ 1203. ADMINISTRATION OF TESTS; RETENTION OF TEST AND

         VIDEOTAPE

                                        ***

   (h) A Vermont law enforcement officer shall have a right to request a

breath or blood sample in an adjoining state or country under this section

unless prohibited by the law of the other state or country. If the law in an

adjoining state or country authorizes does not prohibit an officer acting under

this section to take from taking a breath or blood sample in its jurisdiction,

evidence of such sample shall not be excluded in the courts of this state solely

on the basis that the test was taken outside the state.

                                        ***



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   (j) A videotape made of the alleged offense and subsequent processing may

be erased or destroyed by the law enforcement agency no earlier than 90 days

after final judgment, or, if no civil or criminal action is filed, no earlier than 90

days after the date the videotape was made.

   (k) A copy of a videotape made of the alleged offense shall be provided to

the defendant within ten days after the defendant requests the copy and pays a

$15.00 fee for its reproduction.

Sec. 15. 23 V.S.A. § 1203c is added to read:

§ 1203c. ADMISSIBILITY OF TESTS

   (a) A law enforcement officer who administers a breath test shall be

permitted to testify in a civil action that he or she:

      (1) has been certified by the Vermont criminal justice training council

and trained in the administration of the test in compliance with the standards

established by subsection 1203(a) of this title; and

      (2) has determined, based upon available information, that the testing

instrument performed within established quality assurance standards.

   (b) In a civil action under this chapter or under section 656 of Title 7, a

chemist or a person who calibrates or maintains an infrared or preliminary

breath testing device shall be allowed to testify by affidavit, and the affidavit

shall be admissible in the action.




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   (c) This section shall apply to the admission in evidence of all breath tests

administered under this chapter, whether by preliminary breath testing device,

infrared device or any other method approved by the department of health.

Sec. 16. 23 V.S.A. § 1205 is amended to read:

§ 1205. CIVIL SUSPENSION; SUMMARY PROCEDURE

   (h) Final hearing.

       (1) If the defendant requests a hearing on the merits, the court shall

schedule a final hearing on the merits to be held within 21 days of the date of

the preliminary hearing. In no event may a final hearing occur more than 42

days after the date of the alleged offense without the consent of the defendant

or unless for good cause shown. The final hearing may only be continued by

the consent of the defendant or for good cause shown. The issues at the final

hearing shall be limited to the following:

       (1)(A) whether the law enforcement officer had reasonable grounds to

believe the person was operating, attempting to operate or in actual physical

control of a vehicle in violation of section 1201 of this title;

       (2)(B) whether at the time of the request for the evidentiary test the

officer informed the person of the person's rights and the consequences of

taking and refusing the test substantially as set out in subsection 1202(d) of

this title;

       (3)(C) whether the person refused to permit the test;



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      (4)(D) whether the test was taken and the test results indicated that the

person's alcohol concentration was 0.08 or more at the time of operating,

attempting to operate or being in actual physical control of a vehicle in

violation of section 1201 of this title, whether the testing methods used were

valid and reliable and whether the test results were accurate and accurately

evaluated. Evidence that the test was taken and evaluated in compliance with

rules adopted by the department of health shall be prima facie evidence that the

testing methods used were valid and reliable and that the test results are

accurate and were accurately evaluated;

      (5)(E) whether the requirements of section 1202 of this title were

complied with.

      (2) No less than seven days before the final hearing, and subject to the

requirements of District Court Civil Rule 11, the defendant shall provide to the

state and file with the court a list of the issues (limited to the issues set forth in

this subsection) that the defendant intends to raise. Only evidence that is

relevant to an issue listed by the defendant may be raised by the defendant at

the final hearing. The defendant shall not be permitted to raise any other

evidence at the final hearing, and all other evidence shall be inadmissible.

                                        ***

   (p) Suspensions to run concurrently. Suspensions imposed under this

section or any comparable statute of any other jurisdiction and sections 1206



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and 1208 of this title or any comparable statutes of any other jurisdiction or

any other suspension resulting from a conviction for a violation of section

1091 of this title for from the same incident shall run concurrently and a person

shall receive credit for any elapsed period of a suspension served in Vermont

against a later suspension imposed in this state. In order for suspension credit

to be available against a later suspension, the suspension issued under this

section must appear and remain on the individual's motor vehicle record.

                                       ***

   (t) For a first offense, the time limits set forth in subsections (g) and (h) of

this section are directive only, and shall not be interpreted by the court to be

mandatory or jurisdictional.

   (u) In any proceeding under this section, for cause shown, a party’s chemist

may be allowed to testify by telephone in lieu of a personal appearance.

Sec. 17. 23 V.S.A. § 1206 is amended to read:

§ 1206. SUSPENSION OF LICENSE FOR DRIVING WHILE UNDER

         INFLUENCE, REINSTATEMENT

   (a) First conviction. Upon Except as otherwise provided, upon conviction

of a person for violating a provision of section 1201 of this title, or upon final

determination of an appeal, the court shall forward the conviction report

forthwith to the commissioner of motor vehicles. The commissioner shall

immediately suspend the person's operating license, or nonresident operating



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privilege, or the privilege of an unlicensed operator to operate a vehicle for a

period of 90 days and until the defendant complies with section 1209a of this

title.

   (b) Extended suspension. In cases resulting in a fatality, the period of

suspension shall be one year and until the defendant complies with section

1209a of this title.

   (c) Upon conviction of a person for violating a provision of subsection

1201(b) or (c) of this title, or upon final determination of an appeal, the court

shall forward the conviction report forthwith to the commissioner of motor

vehicles. The commissioner shall immediately suspend the person’s operating

license or nonresident operating privilege or the privilege of an unlicensed

operator to operate a vehicle for a period of six months, and until the defendant

complies with section 1209a of this title.

Sec. 18. 23 V.S.A. § 1209a(b) and (c) are amended to read:

   (b) Abstinence. Notwithstanding any other provision of this subchapter, a

person whose license has been suspended for three years or more under this

subchapter may apply to the driver rehabilitation school director and to the

commissioner for reinstatement of his or her driving privilege. In the case of a

suspension for three years, the person shall have completed two years of total

abstinence from consumption of alcohol or drugs or both. In the case of a

suspension for life, the person shall have completed three years of total



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abstinence from consumption of alcohol or drugs or both. In both cases, the

beginning date for the period of abstinence shall be no sooner than the

effective date of the suspension from which the person is requesting

reinstatement and shall not include any period during which the person is

serving a sentence of incarceration to include furlough. If the commissioner,

or a medical review board convened by the commissioner, is satisfied by a

preponderance of the evidence that the applicant has abstained for the required

number of years immediately preceding the application and hearing, has

successfully completed a therapy program as required under this section and

the person appreciates that he or she cannot drink any amount of alcohol and

drive safely, the person's license shall be reinstated immediately upon such

conditions as the commissioner may impose. If after notice and hearing the

commissioner later finds that the person was operating, attempting to operate

or in actual physical control of a vehicle while there was any amount of

alcohol in the blood following reinstatement under this subsection, the person's

operating license or privilege to operate shall be immediately suspended for the

period of the original suspension. A person shall be eligible for reinstatement

under this section only once following a suspension for life.

   (c) Screening and therapy programs. In the case of a second or subsequent

suspension, the court commissioner shall order notify the person that he or she

is required to enroll in the alcohol and driving education screening and therapy



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program provided for in this section within 30 days of license suspension. If

the person fails to enroll or fails to remain so enrolled until completion, the

drinking driver rehabilitation program shall report such failure to the

sentencing court. The court may order the person to appear and show cause

why he or she failed to comply.

Sec. 19. 23 V.S.A. § 1210(c) and (d) are amended to read:

   (c) Second offense. A person convicted of violating section 1201 of this

title who has been convicted of another violation of that section shall be fined

not more than $1,500.00 or imprisoned not more than two years, or both. At

least 48 consecutive hours of the sentence of imprisonment must be served and

may not be suspended or deferred or served as a supervised community

sentence. At least 150 hours of community service shall be performed, or 48

consecutive hours of the sentence of imprisonment shall be served and may not

be suspended or deferred or served as a supervised sentence, except that credit

may be received for time served in a residential alcohol facility pursuant to

sentence if the program is successfully completed.

   (d) Third or subsequent offense. A person convicted of violating section

1201 of this title who has twice been convicted of violation of that section shall

be fined not more than $2,500.00 or imprisoned not more than five years, or

both. At least 300 hours of community service shall be performed, or 96

consecutive hours of the sentence of imprisonment shall be served and may not



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be suspended or deferred or served as a supervised sentence, except that credit

may be received for time served in a residential alcohol facility pursuant to

sentence if the program is successfully completed.

Sec. 20. 23 V.S.A. § 2302 is amended to read:

§ 2302. TRAFFIC VIOLATION DEFINED

   (a) As used in this chapter, "traffic violation" means:

      (1) a violation of any provision of this title or rule adopted under this

title for which no term of imprisonment is provided by law, and for which a

penalty of no more than $1,000.00 is provided;

      (2) any traffic complaint a violation of this title with a maximum penalty

set at not more than $1,000.00 and for which no term of imprisonment is

provided by law;

      (3) any traffic violation a violation of this title with a scheduled penalty

of not more than $1,000.00 established pursuant to subsection (d) of this

section 4 V.S.A. § 1102(d) and for which no term of imprisonment is provided

by law;

      (4) a violation of any municipal ordinance relating to the operation or

use of motor vehicles or to the use of highways by pedestrians or by the

operation of any other vehicle. Violations of municipal ordinances relating to

parking of motor vehicles shall not be considered traffic violations;




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      (5) a violation of chapter 28 of Title 5, relating to transportation of

hazardous materials, and rules adopted pursuant to section 2001 of Title 5;

      (6) a violation of chapter 29 of Title 5, relating to motor carrier safety

standards, and rules adopted pursuant to section 2101 of Title 5; or

      (7) a violation of section 3408(c) of Title 5, relating to trail use of

certain state-owned railroad corridors.

   (b) A traffic violation is not a crime and shall be treated as a civil action.

   (c) A violation of a traffic law in this title for which no penalty is otherwise

provided shall be subject to a penalty of not more than $1,000.00.

   (d) For any traffic violation for which no term of imprisonment is provided

by law, for which the minimum penalty is less than $1,000.00, or for which a

penalty is not otherwise established, three district court judges appointed by

the court administrator shall establish a schedule, within the limits prescribed

by law, of the penalty to be imposed. Any police officer who issues a

complaint shall advise the defendant of the schedule of penalties and show the

defendant a copy thereof.

Sec. 21. REPEAL

   23 V.S.A. § 2303 is repealed.




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Sec. 22. 23 V.S.A. § 678 is added to read:

§ 678. OPERATING COMMERCIAL MOTOR VEHICLE AFTER

        PRIVILEGE SUSPENDED

   A person whose privilege to operate a commercial motor vehicle has been

suspended under section 4116a of this title, and who operates or attempts to

operate a commercial motor vehicle upon a public highway before the

suspension period has expired, shall be subject to the penalties set forth in

subsection 674(a) of this title.

Sec. 23. 23 V.S.A. § 1218 is amended to read:

§ 1218. COMMERCIAL MOTOR VEHICLES; 0.04

   (a) A person shall not operate, attempt to operate, or be in actual physical

control of a commercial motor vehicle:

      (1) when the person's alcohol concentration is 0.04 or more; or

      (2) when the person is under the influence of intoxicating liquor; or

      (3) when the person is under the influence of any other drug or under the

combined influence of alcohol and any other drug to a degree which renders

the person incapable of driving safely.

   (b) A violation of this section shall result in disqualification from driving a

commercial motor vehicle as provided in section 4116 of this title, or in

suspension of the privilege to operate a commercial motor vehicle as provided

in section 4116a of this title. Those provisions of section 1205 of this title



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2000                                                                     Page 24


which establish a procedure for civil suspensions shall apply to this section

except that where that section refers to alcohol concentration it shall be

deemed to refer to an alcohol concentration of 0.04.

Sec. 24. 23 V.S.A. § 4116a is added to read:

§ 4116a. SUSPENSION OF OPERATING PRIVILEGE

   (a) A person’s privilege to operate a commercial motor vehicle in the state

of Vermont shall be suspended for one year, if:

      (1) the person is convicted of a first violation of operating, attempting to

operate or being in actual physical control of a commercial motor vehicle on a

highway with an alcohol concentration of 0.04 or more, or under the influence,

as defined in section 1218 of this title; and

      (2) the person’s commercial driver license is issued by a state or country

that does not have a reciprocity agreement with the state of Vermont for the

disqualification of commercial driver licenses under section 4115 of this title.

   (b) A person’s privilege to operate a commercial motor vehicle in the state

of Vermont shall be suspended for three years if the person is convicted of

violating subsection (a) of this section, and the violation occurred while the

person was transporting a hazardous material required to be placarded.

   (c) A person’s privilege to operate a commercial motor vehicle in the state

of Vermont shall be suspended for life if the person is convicted a second time




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AS PASSED BY HOUSE/HOUSE PROPOSAL                                           S.324
2000                                                                      Page 25


of violating subsection (a) of this section, and both convictions arise out of

separate occurrences.

   (d) A person’s privilege to operate a commercial motor vehicle in the state

of Vermont shall be suspended for 60 days if the person is convicted of two

serious traffic violations, or for 120 days if the person is convicted of three

serious traffic violations, arising from separate incidents occurring within a

three-year period.

   (e) A person’s privilege to operate a commercial motor vehicle in the state

of Vermont shall be suspended for life if the person uses a commercial motor

vehicle in the commission of any offense under state or federal law that is

punishable by imprisonment for a term exceeding one year, involving the

manufacture, distribution, or dispensing of a regulated drug, or possession with

intent to manufacture, distribute or dispense a regulated drug, and for which

the person was convicted.

Sec. 25. 24 V.S.A. § 1977 is amended to read:

§ 1977. COMPLAINT FOR MUNICIPAL CIVIL ORDINANCE

         VIOLATIONS

   (a) In all municipal civil cases before the judicial bureau, the summons and

complaint shall be a form prescribed by the supreme court and known as the

"municipal complaint."




                                                                      VT LEG 127715.1
AS PASSED BY HOUSE/HOUSE PROPOSAL                                         S.324
2000                                                                    Page 26


   (b) The complaint in a municipal civil case shall be signed by the issuing

municipal official. The original copy shall be filed with the judicial bureau, a

copy shall be retained by the issuing municipal official and two copies shall be

given to the defendant.

   (c)(b) The municipal official may void or amend the municipal complaint

issued by that official by so marking the complaint and sending it to the

judicial bureau.

   (c) The court administrator shall approve an appropriate summons and

complaint form, pursuant to section 1105(a) of Title 4, to implement the

assessment of the full and waiver penalty provisions of this section.

   (d) The complaint shall contain a description of the ordinance allegedly

violated, the allegations, the amount of the waiver penalty and the full penalty

and an explanation of rights and instructions on answering the allegations. The

complaint shall also contain, in boldface print, the following:

      (1) IF YOU ADMIT TO A VIOLATION OF THE ORDINANCE OF

THE TOWN/CITY/VILLAGE OF ____ OR IF YOU DO NOT CONTEST

THE ALLEGATIONS, SIGN THE COMPLAINT ADMITTING THE

VIOLATION OR STATING THAT THE ALLEGATIONS ARE NOT

CONTESTED AND SEND IT TO THE JUDICIAL BUREAU WITHIN 20

DAYS WITH PAYMENT IN THE AMOUNT OF THE WAIVER

PENALTY.



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AS PASSED BY HOUSE/HOUSE PROPOSAL                                            S.324
2000                                                                       Page 27


      (2) If YOU WANT TO DENY THE ALLEGATIONS IN THIS

COMPLAINT, YOU MUST SEND A SIGNED DENIAL TO THE JUDICIAL

BUREAU WITHIN 20 DAYS. IF YOU SEND IN A DENIAL, YOU WILL

RECEIVE A DATE FOR YOUR TRIAL FROM THE JUDICIAL BUREAU.

IF YOU LOSE THE CASE AFTER A TRIAL, YOU WILL BE ORDERED

TO PAY A PENALTY IN AN AMOUNT NOT LESS THAN THE WAIVER

PENALTY AND NOT MORE THAN THE FULL PENALTY.

      (3) IF YOU DO NOT ANSWER THIS COMPLAINT WITHIN 20

DAYS, OR IF YOU DENY THE ALLEGATIONS IN THE COMPLAINT

AND FAIL TO APPEAR FOR THE HEARING, A DEFAULT JUDGMENT

WILL BE ENTERED AGAINST YOU IN THE AMOUNT OF THE FULL

PENALTY. THE FAILURE TO PAY THE PENALTY ASSESSED WILL

RESULT IN FURTHER LEGAL ACTION AGAINST YOU.

Sec. 26. 24 V.S.A. § 2201 is amended to read:

§ 2201. THROWING, DEPOSITING, AND DUMPING REFUSE;

         PENALTY; SUMMONS AND COMPLAINT

                                       ***

   (f)(1) Summons and complaint. Upon a determination that a person has

violated this section, a person authorized to enforce this section shall file a

complaint against the person with the judicial bureau.




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AS PASSED BY HOUSE/HOUSE PROPOSAL                                          S.324
2000                                                                     Page 28


      (2) In all littering and illegal dumping cases, the summons and

complaint shall be in a form prescribed by the supreme court and known as the

"littering and illegal dumping complaint."

      (3) The complaint shall be signed by the issuing person. The original

shall be filed with the judicial bureau, a copy shall be retained by the issuing

person, and two copies shall be given to the defendant.

      (4) The complaint shall contain a description of the provision of this

section allegedly violated, the allegations, the amount of the waiver penalty

and the full penalty, and an explanation of rights and instructions on answering

the allegations. The complaint shall also contain, in boldface print, the

following:

         (A) IF YOU ADMIT TO A VIOLATION OF THE LITTERING

AND ILLEGAL DUMPING PROHIBITIONS OR IF YOU DO NOT

CONTEST THE ALLEGATIONS, SIGN THE COMPLAINT ADMITTING

THE VIOLATION OR STATING THAT THE ALLEGATIONS ARE NOT

CONTESTED AND SEND IT TO THE JUDICIAL BUREAU WITHIN 20

DAYS WITH PAYMENT IN THE AMOUNT OF THE WAIVER

PENALTY.

         (B) IF YOU WANT TO DENY THE ALLEGATIONS IN THIS

COMPLAINT, YOU MUST SEND A SIGNED DENIAL TO THE JUDICIAL

BUREAU WITHIN 20 DAYS. IF YOU SEND IN A DENIAL, YOU WILL



                                                                     VT LEG 127715.1
AS PASSED BY HOUSE/HOUSE PROPOSAL                                          S.324
2000                                                                     Page 29


RECEIVE A DATE FOR YOUR TRIAL FROM THE JUDICIAL BUREAU.

IF YOU LOSE THE CASE AFTER A TRIAL, YOU WILL BE ORDERED

TO PAY A PENALTY IN AN AMOUNT NOT LESS THAN THE WAIVER

PENALTY AND NOT MORE THAN THE FULL PENALTY.

         (C) IF YOU DO NOT ANSWER THIS COMPLAINT WITHIN 20

DAYS, OR IF YOU DENY THE ALLEGATIONS IN THE COMPLAINT

AND FAIL TO APPEAR FOR THE HEARING, A DEFAULT JUDGMENT

WILL BE ENTERED AGAINST YOU IN THE AMOUNT OF THE FULL

PENALTY. THE FAILURE TO PAY THE PENALTY ASSESSED WILL

RESULT IN FURTHER LEGAL ACTION AGAINST YOU.

         (D) IF YOU ADMIT OR DO NOT CONTEST OR DO NOT

ANSWER, YOU WILL BE LIABLE TO THE STATE OF VERMONT FOR

THE AMOUNT INDICATED IN THE COMPLAINT.

   (g) Amendment of complaint. A person authorized to enforce this section

may amend or dismiss a complaint issued by that person by marking the

complaint and returning it to the judicial bureau. At the hearing, a person

authorized to enforce this section may amend or dismiss a complaint issued by

that person, subject to the approval of the hearing judge.

   (h) Waiver penalty. The administrative judge shall appoint a panel of

judicial bureau hearing officers to establish a waiver penalty for a violation of

this section.



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AS PASSED BY HOUSE/HOUSE PROPOSAL                                          S.324
2000                                                                     Page 30


Sec. 27. Rule 43 of the Vermont Rules of Criminal Procedure is revised to

read:

  RULE 43. PRESENCE OF THE DEFENDANT

                                       ***

  (c) Presence Not Required. A defendant need not be present in the

following situations:

                                       ***

        (2) In prosecutions for misdemeanors, the defendant, with the consent of

the court, may waive appearance under Rule 5 in writing and the court, with

the written consent of the defendant and the state’s attorney, may permit

arraignment, plea pleas of guilty, nolo contendere or not guilty, trial, and

imposition of sentence in the defendant’s absence. Before a plea of not guilty

may be filed and accepted by the court, the state’s attorney and the defendant

shall agree upon bail and conditions of release, which shall be signed by the

defendant and his or her attorney, and filed with the court simultaneously with

the not guilty plea.

                                       ***

Sec. 28. Rule 80.5(e) of the District Court Civil Rules is revised to read:

   (e) Preliminary Hearing; Waiver; Discovery Limited. In every case under

this rule, except as set forth below, a preliminary hearing shall be held.




                                                                     VT LEG 127715.1
AS PASSED BY HOUSE/HOUSE PROPOSAL                                           S.324
2000                                                                      Page 31


   At the preliminary hearing the State and the defendant shall each make

available for inspection all nonprivileged information and written statements in

their possession and control concerning the evidentiary test or tests, relation

back, or other matters to be contested at the hearing on the merits, including

without limitation the police report, expert witnesses’ reports, processing

forms, affidavit, breath test results, police notes and the names and addresses

of witnesses, except that evidence the defendant does not intend to use at the

hearing need not be disclosed by the defendant. A copy of a videotape made

of the alleged offense and subsequent processing shall be available for

purchase by the defendant directly from the law enforcement agency

responsible for initiating the action upon written request and advance payment

of a $15.00 fee. The fees collected for videotapes sold under this rule shall be

allocated in the manner prescribed by Rule 16 of the Vermont Rules of

Criminal Procedure. Discoverable evidence not known at the time of the

preliminary hearing shall be disclosed to the party immediately when it

becomes known. Failure to provide discovery in accordance with this

paragraph may be subject to appropriate sanctions in the discretion of the

court, which may include preclusion of any witness or evidence not timely

disclosed.

   Upon request, either party is entitled to receive photocopies of the evidence

listed above, within one day of the date it is produced for inspection.



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AS PASSED BY HOUSE/HOUSE PROPOSAL                                             S.324
2000                                                                        Page 32


   A defendant to whom notice of suspension has been delivered or mailed

shall appear by counsel or pro se a the preliminary hearing unless, prior to the

hearing, the district court in the exercise of its discretion grants a request for

waiver of the preliminary hearing. The request for waiver may be granted only

if supported by affidavit establishing hardship and setting forth a telephone

number at which the person may be contacted during business hours to be

informed of the court’s ruling.

   At the preliminary hearing the court shall ensure that the required disclosure

has occurred, provide the defendant with an explanation of the procedures to

be followed at the hearing on the merits, determine whether the defendant

continues to seek a hearing on the merits, and, if so, schedule the hearing to be

held within thirty days of the date the request for hearing was received by the

Commissioner.

   In extraordinary circumstances, the court may authorize use of discovery

pursuant to these rules in addition to that set forth in this subdivision, but

subject to the time constraints of this rule.




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AS PASSED BY HOUSE/HOUSE PROPOSAL                                            S.324
2000                                                                       Page 33


Sec. 29. Rule No. 16 of the Vermont Rules of Criminal Procedure is revised to

read:

RULE 16. DISCOVERY BY DEFENDANT

                                         ***

   (e) Videotapes. A copy of a videotape made of the alleged offense and

subsequent processing shall be available for purchase by the defendant directly

from the law enforcement agency responsible for initiating the action upon

written request and advance payment of a $15.00 fee. A municipal or county

law enforcement agency shall be entitled to all fees it collects for videotapes

sold pursuant to this rule. Fees collected by the state for videotapes sold

pursuant to this rule shall be deposited in the DUI enforcement special fund

created under section 1220a of Title 23. The original videotape may be erased

90 days after:

         (1) the entry of final judgment; or

         (2) the date the videotape was made, if no civil or criminal action is

filed.

Sec. 30. 23 V.S.A. § 1201(f) is added to read:

   (f) For purposes of this section, it shall be an affirmative defense to be

proven by clear and convincing evidence that the person was not in actual

physical control of the vehicle because the person:

         (1) had no intention of operating the vehicle; and



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2000                                                                        Page 34


         (2) had not in fact operated the vehicle in violation of subsection (a) of

this section.

Sec 31. 20 V.S.A. § 2222 is added to read:

§ 2222. FEDERAL LAW ENFORCEMENT OFFICERS; POWER OF

           ARREST FOR VERMONT CRIMES

      (a) For purposes of this section, "a certified federal law enforcement

officer" means a federal law enforcement officer who:

         (1) is employed as a law enforcement officer of the federal government

as:

            (A) a special agent, border patrol agent or immigration inspector of

the Immigration and Naturalization Service, U.S. Department of Justice; or

            (B) an officer or inspector of the U.S. Customs Service of the

Department of the Treasury; and

         (2) has satisfactorily completed a course of study in Vermont laws and

criminal procedures approved by the Vermont criminal justice training council,

at the expense of the officer’s agency;

         (3) has been certified by the commissioner of public safety pursuant to

subsection (b) of this section; and

         (4) has taken an oath to uphold the constitution of the state of Vermont.

      (b) The executive director of the criminal justice training council shall

certify a federal law enforcement officer who applies for certification if the



                                                                        VT LEG 127715.1
AS PASSED BY HOUSE/HOUSE PROPOSAL                                           S.324
2000                                                                      Page 35


officer satisfies the employment and study requirements listed in subsection (a)

of this section. A certification under this subsection shall automatically

terminate immediately upon the officer’s suspension or termination of

employment from the federal agency in which he or she was employed at the

time the certification occurred.

   (c) A certified federal law enforcement officer is authorized to make an

arrest pursuant to Rule 3 of the Vermont Rules of Criminal Procedure for

violation of Vermont laws anywhere within the state if the officer determines

that it is necessary to do any of the following:

      (1) Protect an individual in the presence of the officer from the

imminent infliction of serious bodily injury.

      (2) Provide immediate assistance to an individual who has suffered or is

threatened with serious bodily injury.

      (3) Prevent the escape of any individual whom the officer reasonably

believes has committed a crime in the presence of the officer.

      (4) Prevent the escape of any individual whom the officer reasonably

believes has committed a felony under Vermont law.

   (d) A certified federal law enforcement officer who makes an arrest under

this section shall report the arrest, without delay, to the nearest Vermont state

police barracks.




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AS PASSED BY HOUSE/HOUSE PROPOSAL                                            S.324
2000                                                                       Page 36


   (e) A certified federal law enforcement officer who makes an arrest under

the authority of this section shall have the same immunity from liability that a

state or municipal law enforcement officer has under the laws of this state.

   (f) In the event an action is brought against a certified federal law

enforcement officer exercising authority under this section or against the

commissioner of the department of public safety who granted the authority, the

attorney general shall defend the officer and commissioner, and the state shall

indemnify the officer and commissioner.

   (g) This section is not intended to limit existing authority of federal officers

under federal law or to interfere with the performance of federal duties by

federal officers.

Sec. 32. 28 V.S.A. § 304 is amended to read:

§ 304. DISPOSITION ALTERNATIVES UPON VIOLATION OF

        PROBATION

   (a) If a violation is established by a proceeding conducted in accordance

with section 302 of this title, the court may, in its discretion, revoke probation

and require the probationer to serve the sentence which was suspended, or any

portion thereof, or order that the sentence be served in the community pursuant

to the provisions of chapter 6 of this title. The court may not alter the original

sentence imposed upon finding a violation of probation.




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AS PASSED BY HOUSE/HOUSE PROPOSAL                                              S.324
2000                                                                         Page 37


   (b) As an alternative to revocation and imposition of all or a portion of the

original suspended sentence as provided in subsection (a) of this section, the

court, in its discretion, after a violation has been established, may:

      (1) Continue the probationer on the existing sentence; or

      (2) Effect, in accordance with section 253(b) of this title, necessary or

desirable changes or enlargements in the conditions of probation; or

      (3) Conduct a formal or informal conference with the probationer in

order to re-emphasize to him the necessity of compliance with the conditions

of probation; or

      (4) Issue a formal or informal warning to the probationer that further

violations may result in revocation of probation by the court.

Sec. 33. REPORTS

   (a) The commissioner of the Department of Health shall promptly address

the need for expert witness testimony and affidavits in civil and criminal

actions for driving under the influence of alcohol. In developing methods of

addressing this need, the commissioner shall consider training and assigning

additional chemists and nonchemist employees to work with the DataMaster

Program and to provide testimony. The commissioner shall be mindful of

Vermont Rule of Evidence 702, which authorizes opinion testimony by a

person who possesses knowledge, skill, experience, training or education. By

September 1, 2000 and by January 15, 2001, the commissioner shall report the



                                                                         VT LEG 127715.1
AS PASSED BY HOUSE/HOUSE PROPOSAL                                          S.324
2000                                                                     Page 38


progress which has been made implementing this section to the chairs of the

House and Senate Judiciary Committees.

   (b) It was the intent of the general assembly in passing Act 117 that cruiser-

mounted police package video cameras be used consistently and regularly.

The department of public safety shall therefore:

      (1) Develop policies and procedures governing the use of cruiser-

mounted police package video cameras by the state police that require:

         (A) mandatory training in the use of the video cameras;

         (B) mandatory use of the video cameras; and

         (C) the adoption of methods to ensure the most effective use of the

video cameras.

      (2) Develop, through the governor’s highway safety program, rules for

granting cruiser-mounted police package video cameras to law enforcement

agencies.

      (3) Adopt, through the governor’s highway safety program, and in

cooperation with the criminal justice training council, procedures to satisfy the

requirements of subdivisions (1) and (2) of this subsection.

      (4) Report, through the governor’s highway safety program, and as part

of its annual report on the implementation of Act 117, to the legislature on the

implementation of this subsection on or before January 15, 2001.




                                                                    VT LEG 127715.1
AS PASSED BY HOUSE/HOUSE PROPOSAL                                     S.324
2000                                                                Page 39


Sec. 34. EFFECTIVE DATE

  Secs. 1, 4 and 33 of this act shall take effect on passage.




                                                                VT LEG 127715.1

				
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