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Winning
The Civil Suspension Case - A Checklist 1) Notice
of Intent to Suspend.
• During initial phone call,
request client to immediately mail white copy of notice
by certified mail (remind them to fill it out!)
requesting a hearing - must be mailed or delivered
within 7 days or else automatic suspension 11 days after
notice given to operator, 23 V.S.A. § 1205(e)(1); see
also § 1205(e)(2) (if second violation of § 1201,
suspension automatic even if hearing requested.)
• Did
Officer mail or give Notice of Intent to Suspend within
3 business days of receiving test results? See § 1205
©).
• Did arresting officer enter correct dates for
giving the notice to the operator, and due date for
return by mail? If not, and notice returned late, or if
client suspended, move to request a hearing out of time
pursuant to V.R.C.P. 80.5(d) (requires showing of good
cause).
• Was client’s breath test result at least .08%,
as required by § 1205(b)(5)? If not, Court should
dismiss Civil at Preliminary Hearing. State v. Anderson
2005 Vt. 80, ¶ 18, 16 Vt. L.W. 161, 163 (2005).
2) Datamaster Evidence Ticket.
• Correct times for stop and
test listed?
• Second test given which falls below .08%?
Second result can prove that first result inaccurate. §
1205(h)(4) and rebuts § 1205(h) presumption. State v.
Lowe 169 Vt. 175 (1999) (mem.).
• Second test given?
Greater than 10% difference between the two tests? •
Error prompt message or other indication of failure or
malfunction?
• Simulator Solution Temperature unusually
high or low?
3) D.W.I. Affidavit.
• Page 1: ¶ 2 - Time
and date of offense agree with Datamaster Ticket?
• Page
1: ¶ 3 - Cop’s story make sense? Is there a narrative
affidavit attached? Is it notarized? Is notarization
date the same date the officer signed the affidavit? See
State v. Lanoue 9 Vt.Tr.Ct.Rptr. 181, 182 (2005)
(striking D.W.I. affidavit which was notarized one day
after it was signed.
• Page 1: ¶ 4 - do “Observations of
Defendant” support officer’s reasonable belief that
person is under the influence so as to justify request
for preliminary breath sample under V.S.A. § 1203(f)?
See State v. Palmer 4 Vt.Tr.Ct.Rptr. 273 (2000; see also
“D.U.I. Detection and Standardized Field Sobriety
Testing Manual” (hereinafter “F.S.T. Manual”) Sept. 2000
Ed. At 67 (Preliminary Breath Test result by itself
“should never the sole basis for a D.U.I. arrest”).
• Do
the “observations of Defendant” square with how the
driver performed on the videotape?
• Page 2: Does “Time
observation of Defendant started” square with time given
on Implied Consent Form? How does it compare to time
test was given, either on the Datamaster ticket or
Implied Consent Form? If significantly less than 15
minutes between start of the observations period and the
test, may be able to show test results inaccurate for
failure to comply with Vermont Department of Health
requirements for breath testing. See State v. Gray 7
Vt.Tr.Ct.Rptr. 321 (2003). You must get an affidavit
from Carl Tremmel or other defense chemist to establish
this.
• Page 2: ¶ 5 - Miranda warnings - each box
checked as read? If client agreed to talk to officer,
was there a valid waiver, i.e. was the waiver language
paragraph read, signed (or waiver verified by video
tape) and witnesses? Remember that “heavy” burden is on
State to prove a valid and knowing waiver, which will
not be presumed from ambiguous conduct. State v. Hohman
136 Vt. 341, 351 (1978). • Was client advised of right
to counsel at State expense regardless of ability to
pay, as required by § 1202©) and State v. Madonna 169
Vt. 98, 102 (1999)? Failure to provide such information,
regardless of whether client pad prior D.W.I.
convictions, is grounds for suppressing the test
results. State v. Stockwell 9 Vt.Tr.Ct.Rptr. 96 (2004)
(Also holding that prejudice resulted from defendant
having had two prior driving offenses where he had used
services of a private attorney.)
4) Implied Consent
Form.
• Did officer record the client agreed to give a
breath sample but was then later charged with a refusal?
• Was the officer actually in the client’s presence
during that time?
• If the State cannot account for the
entire 15 minute waiting period it may not be able to
prove the accuracy of the test result at the Civil
hearing. State v. Gray 7 Vt.Tr.Ct.Rptr. 321 (2003).
(Failure to wait full 15 minutes before providing breath
sample renders test results inaccurate).
• If the client
burped, belched or vomited during the observation period
did the officer restart the 15 minute waiting period?
Failure to do this may compromise accuracy of the test
result for failure to comply with V.D.H. Guidelines.
State v. Vanderminden Docket No. 1853-12-99Bncr and
99-12-99Bncs. Requesting breath sample only 8 minutes
after a burp destroys 23 V.S.A. § 1205(n) 1205(n)
presumption; State v. Kerwynn Docket 63-7-99Bncs (after
multiple burps, failure to observe suspect for 15
minutes renders the test results inaccurate).
•
Paragraph 8: ¶ A - Did client request blood test? If so,
how long was he held before his release? Section
1203a(a) may be argued to support suppression of the
breath test if the officer “prevented or denied” the
operator’s ability to obtain an additional “test or
tests”.
• Was the client “detained in custody” after
providing a test “and upon completion of processing”,
i.e. was the client shackled, placed in a holding cell,
or otherwise prevented by the officer from leaving the
station after the processing was completed? If so, if
the client requested an additional or independent test,
and the officer did not make arrangements, the
evidentiary test may be suppressed for failure to comply
with Section 1203a(b). See State v. Karmen 150 Vt. 547,
549 (1988).
• Page 4:
¶ 9 - Are the “officer’s
observations” backed up by the video tape?
• Are there
additional offenses?
• Was the client video taped
(always request a copy even if the processing form
indicated otherwise)?
• Is the record of prior
convictions accurate?
• Often officers get confused if
client has out-of-state D.W.A.1 or D.W.I. convictions -
check with DMV, as your client may only be facing a true
1st offense in Vermont.
5) Preliminary Hearing
• State
obligated to provide copies of all documents, including
statements, processing forms, police notes, identify of
witnesses, etc. § 1205(l). Sanctions can include, in the
court’s discretion, exclusion of any witness or evidence
not timely disclosed, see V.R.C.P. 80.5(e). (End of
Quotation)
• If this is client’s second offense or
higher, do not agree that the hearing may be held more
than 42 days of the date after the date of the offense.
According to § 1205(h), failure to hold the final Civil
hearing within 42 days of the date of the offense,
requires dismissal, unless good cause shown by the State
or if Defendant consents. State v. Tongue 170 Vt. 409
(2000); State v. Singer 170 Vt. 346 (2000). This rule
only applies in cases involving a second offense or
higher. 23 V.S.A. § 1205(t).
6) If Blood Test:
• Request
Independent Analysis requested through Alcohol Analysis
Laboratories, Inc., P.O. Box 3386, Concord, New
Hampshire 03302-3386. Include a $100.00 fee.
• Is
independent sample result within 10% of State’s result?
If not, i.e. deviation of greater than 10%, get
chemist’s affidavit from Carl Tremmel establishing that
unexplained disparity between the two test results
renders the evidentiary test inaccurate under §
1205(h)(4). See State v. Morgen 7 Vt.Tr.Ct.Rptr. 194
(2003).
• Do times given on blood sample analysis
request form match times given on D.W.I. affidavit?
•
Was breath testing equipment not reasonably available as
required by 1202(a)(2)? This depends not only upon the
proximity of the nearest DataMaster, but in cases where
the client was injured, and receiving medical treatment,
what did the officer know about the driver’s condition,
including the extent and duration of treatment, at the
time he ordered a blood sample. The State’s failure to
show that breath testing not reasonably available should
result in judgment in favor of the operator for
noncompliance with § 1202, under 23 V.S.A. § 1205(h)(5).
See State v. Most 7 Vt.Tr.Ct.Rptr. 347 (2003); State v.
Remesch 7 Vt.Tr.Ct.Rptr. 320 (2003); State v. Carleton
No. 153-12-98Rdcr (1999); State v. Blainey No.
153-33-04Gicr (Bench Order at 27-36). (Per Kurt Hughes)
(arresting officer’s failure to consult with medical
personnel concerning impact of transporting hospitalized
driver short distance to barracks for breath testing,
and not inquiring how long before treatment would be
given, justified suppression).
• Officer cannot order
blood sample simply because DataMaster inoperable or
malfunctioned. State v. Coffey 8 Vt.Tr.Ct.Rptr. 287
(2004) (orthodontic device caused malfunction: defense
expert provided testimony) - but failure to remove bite
plates - dental bridge work - dentures have not been
found by the Courts to warrant suppression of breath
test results, even though there exists literature
substantiating that dentures can trap mouth alcohol
which can significantly impact test results. See 17 POF
2d. (1978); I. Erwin Defense of Drunk Driving Cases §
18.03 (3d. Ed.) (1982).
• My experience in recent case
with dentures - Harvey Cohen, after reviewing
Defendant’s processing and dental records, could not
opine that there was mouth alcohol trapped in dentures
which could affect accuracy of test result. However, if
client used denture adhesive, result could be different
(per Cohen).
7) Preparing for the Civil Suspension
Hearing:
• Attitude - they’re winnable.
- relaxed
standards of proof can help you as well as the State.
-
small claims procedure - Under V.R.C.P. 80.5 and V.S.A.
§ 1205(j) can use affidavits by experts, chemists and
lay witnesses.
expert affidavit
chemists affidavit
Lay
W. affidavit? Prob. Nat
• Remember - 5 day rule for
prior delivery of affidavit by hearing - § 1205(j).
-
chemist can testify by phone.
- Notice of Contested
Issues and Notice of Affirmative Defense, i.e. lack of
physical control, § 1202(f), must be delivered to State
and to Court 7 days before Final Hearing, § 1205(h).
8)
Final Preparation:
- Use Chemist (Tremmel, Cohen).
-
Talk to lay witnesses who can rebut operation/lack of
physical control/unreasonableness of officer’s belief
driver under influence.
- Videotape - watch at least 2
times because you will always miss something on the 1st
viewing.
9) Using Discovery From Criminal Case
• ALWAYS
REQUEST OR INSPECT DATAMASTER MAINTENANCE RECORDS AND
READ THEM CAREFULLY.
- Pay special attention to error
message code printouts and simulator solution change
worksheets. If Data simulator solution had expired by
the time of the test, argue that test results are
inaccurate by getting the Officer - preferably the Datamaster Supervising Officer responsible for
maintenance of the machine, to agree that the expired
solution may affect accuracy of the test. At least one
judge has agreed - see State v. Belber Docket No.
257-3-03 Bncr and 25-3-03 Bncs.
- History of Recent DataMaster malfunctioning can result in finding that
testing methods used were neither valid or reliable,
State v. Clark Docket No. 74-4-93Rcs; State v. Lawson 6
Vt.Tr.Ct.Rptr. 371 (Repeated “simulator out of range”
messages recorded at the time of the breath test, as
well as two weeks earlier, rendered test results
inaccurate).
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