SmartTranscript of House Government Operations-2025-02-11-3:30PM

[Chair Matthew Birong]: Thirty one. We are concluding our day with conversation about h forty four. It's a bill that is currently living in judiciary and is moving. We have two representatives from the judiciary committee here as well as legislative council. So, you know, not not really we really have not looked at the words on the page that in-depth. So I guess, probably the best word of operations is to start with the two members of the judiciary committee and then slide over to council for a more granular assessment. That sound okay to you guys? Mhmm. [Vice Chair Lisa Hango]: Alright. [Chair Matthew Birong]: That's a thumbs up from council. Representatives, please join [Representative Kate Nugent]: us. Yeah. [Vice Chair Lisa Hango]: Okay. I'm [Representative Kate Nugent]: just doing the back part. I can do it if you guys [Representative Kate Nugent]: Do you are we just speaking on so representative Goodnow, brow or Or who wants to draw us? Are we just talking about the very last section on [Chair Matthew Birong]: the If that's the section that's relevant [Representative Kate Nugent]: to us [Ben Novogrowski]: Maybe I'll go first. Yeah. [Vice Chair Lisa Hango]: Why don't you go first down? [Representative Kate Nugent]: He didn't. [Ben Novogrowski]: Good to see it. Good to see you too, mister chair. Do you want me to well, if I were to get an invite, I could share it on my screen. [Representative Kate Nugent]: But [Chair Matthew Birong]: If you'd like to, yeah, that's that's fine. But we also have it here so we can [Ben Novogrowski]: And so for the record, Ben Novogrowski from office of legislative council. Really, the only portion in my assessment that really concerns this committee is section five, which is the creation of the impaired driving processing task force. But to give you a general sense of what the bill does, so it makes, as the title indicates, miscellaneous amendments to the impaired driving laws. So that will range it from technical corrections, regarding, you know, just gender neutral terminology, closing some loopholes on reporting requirements. So what occurs in a DUI, prosecution is that there's also parallel civil license suspension track. So there's the criminal prosecution, and then there's a civil case. A lot of times, they proceed together. But the civil license aspect is handled once those decisions are made in court, it's handled by the DMV. So the DMV is the one that actually suspends your license, but there are some reporting, for lack of a better term, loopholes in the law that means the DMV doesn't always get the information that they need from the courts, in order to effectively suspend people's license. So in my former life as a criminal defense attorney, this is a anecdote, we would always advise our clients, your license is going to be suspended. However, our internal monologue is maybe it wouldn't happen because they wouldn't get the information to actually go forward with the suspension. So there are changes in this bill that closes that loophole. Also, within that civil suspension process, in the criminal side of it, you can be criminally charged if you blow point o eight or above, point o two if you are a juvenile, point o four if you're a commercial driver, or if you're under the influence in which is any slight impairment. However, the civil suspension statute, there was a a slight, I guess, [Representative Kate Nugent]: gap in the law [Ben Novogrowski]: that you could only get a civil license suspension if you blew above point o eight, not at or above, which is what the criminal violation is. So there are changes to align the two. So for both a civil suspension and a DUI prosecution, you will be liable if you blow point o eight BAC or above, not just above. So, like, for instance, with the civil suspension, it would be you would have had to have technically blown a point o eight one. [Chair Matthew Birong]: What an interesting legal wrinkle. Right. [Ben Novogrowski]: Yes. And [Vice Chair Lisa Hango]: so what page are [Chair Matthew Birong]: we looking at right now? You said section five. [Ben Novogrowski]: I'm just so I'm just kinda giving you a general flavor of the bill right now, putting you to sleep, which is fine. It's late on, you know, the first session day of the week. Right? Yeah. And then there's another one that another portion of the bill that creates, essentially a criminal refusal for, not complying with a valid search warrant to obtain a blood sample. It's kind of a complicated procedure, but to try and summarize it, right now, if to obtain someone's blood so there are three situations. Either there's the breath test equipment isn't available, the person can't provide a sufficient blood breath sample, so maybe they're too impaired to actually do it, or they're suspected of being, intoxicated by a drug other than alcohol. In those situations, you can obtain a blood test, however you need to obtain a warrant prior to doing so. Right now, if the person were to not comply with the warrant, there's really no recourse other than charging that person with obstruction of justice. And the penalties associated with that are felonies. Most most misdemeanors or or most DUI charges are misdemeanors. So it really didn't have that nexus between the underlying defense of a DUI and then what would actually occur to try and enforce the process to get the information you needed. So what this does is create a criminal refusal charge for that and should try and essentially keep that nexus of the underlying crime so that you're not being charged with a felony that has a lot more serious consequences and also doesn't have the rehabilitative requirements that are associated with the DUI laws. So it's trying to bring them closer together when it comes to sort of the prime and punishment fitting. [Representative Kate Nugent]: So, Vango? [Speaker 5 ]: Thank you. If the situation is such that the individual is being charged with a DUI and something else that's a felony, changing this would not change the fact that they also they're also doing something that is bringing about a felony charge. [Ben Novogrowski]: Correct. That's a separate analysis. [Vice Chair Lisa Hango]: Yep. Yep. Thank you. [Ben Novogrowski]: So what's really before this committee is in section five of the bill. And section five of the bill creates that task force. [Speaker 6 ]: I have [Vice Chair Lisa Hango]: Not good. [Ben Novogrowski]: Peter, can I bum the bill for him? [Speaker 6 ]: Absolutely. Thank you. [Chair Matthew Birong]: Section five is the the effective date. That's everything. [Ben Novogrowski]: Or rather, section six is the effective date. Section five, so do you not have the strike all amendment? [Representative Kate Nugent]: Dude, we have [Chair Matthew Birong]: we have the as introduced. [Ben Novogrowski]: Okay. So strike all amendment is what we're we're on draft three point one of the strike all amendment, not the as introduced. [Chair Matthew Birong]: I'm taking that. I have a three point one. [Representative Kate Nugent]: Yeah. I need a [Chair Matthew Birong]: Someone said there's a digital copy to our NVIDIA system. [Ben Novogrowski]: I will view that as we speak. So if you walk through that for the committee before you even have it, so what this does is that it creates a task force to essentially study the concept of implied consent. And so implied consent when it comes to DUI is sort of this bargain between the driver and the state that says, basically, we're gonna give you the privilege to drive on our roads, but it's under the agreement that if you do something that we suspect a DUI, you've given your consent for a breath test, a blood test, or saliva test if you meet certain procedural requirements. So that's kind of the general concept here. And what this does is to study that concept with the objective to recommend approaches that minimize the duration for which impaired driving suspects are held and also to minimize the processing and paperwork that a police officer has to do as a result of that encounter. So that's sort of the the dual goal here. Minimize the length of law enforcement encounters for suspects and to minimize the paperwork and processing that a law enforcement officer does as a result of those law enforcement encounters. So what this does the way that this is achieved is that there's the membership, which is comprised of the chief judge of the superior court, the defender general or designee, the commissioner of public safety or designee, the commissioner of motor vehicles or designee, the executive director of the Department of State's attorneys and sheriffs or his designee, and a representative from the Vermont Police Association. So they're the people that are analyzing this work with the ultimate goal to issue a report of November fifteenth of this year with any legislative recommendations. But the the what they're really looking at are the constitutional and statutory requirements of implied consent, how those requirements, affect the duration for which someone is held, various methods to minimize the statutory requirements so that they are still constitutional, but maybe we're, you know, minimizing some statutes that demand longer stops, more paperwork, and then, essentially, any other issues that come up, during that study. So that's that's the goal of the task force and really is what's in the purview of this community. [Speaker 5 ]: Okay. Were you able to send that electronically to Autumn? [Representative Kate Nugent]: I have [Representative Kate Nugent]: not yet. [Speaker 5 ]: Okay. So is it on your If judiciary's website? [Ben Novogrowski]: It should be. But, Autumn, if you send me a link right now, I can put it up to the screen and go did? Oh, you did? Okay. [Speaker 5 ]: Is it posted, Autumn? [Representative Kate Nugent]: No. No. No. No. [Chair Matthew Birong]: He's talking about a screen share. [Ben Novogrowski]: So I'll do that, and then subsequently, I'll send it to Autumn so that you have it on your committee website. Thank you, counsel. Here. You know, we adapt to survive. Right? That's what we're trying to do right now. [Chair Matthew Birong]: And so, yeah, so the task force is the relevant component here, and it is get it it's the information gathering and development body. [Ben Novogrowski]: Essentially. Yes. Representative Nugent. [Representative Kate Nugent]: Just curious what prompted the creation of this task force. [Ben Novogrowski]: I would defer to representative Oliver on on that question. But in the meantime, I am able to put this on the screen. [Chair Matthew Birong]: So I'm I'm sorry. I just gotta take it away. We we're we're trying to dial in the AI on this, like, new camera, and we had these, like, like, with the with the gentleman over here. Now it's, like, shifting the screen. It's, like, really interesting. We're, like, workshop a new software and hardware. It's an interesting beta test. It's so weird. Yeah. It really it's it's a new thing. [Ben Novogrowski]: Well, glad that we can be guinea pigs. I see. [Vice Chair Lisa Hango]: I was up for it. [Chair Matthew Birong]: When they told me about it, I was like, let's see. I'll I'll I'll offer feedback. [Ben Novogrowski]: So as you'll see here, section five, subsection a is that creation section that kind of outlines the objective of the the task force. And then you'll see here the the membership or those six members there, And then the powers and duties of the task force under subsection c, one, those constitutional and statutory requirements, so reviewing those, how they affect the duration of those law enforcement encounters, methods to minimize the statutory requirements so that they still are constitutional, and then anything else that the committee wants to explore that's relevant. It has the assistance of the Department of Public Safety to help with scheduling, writing, all that fun stuff. And then, again, the report is due on November fifteenth of this year. The commissioner of public safety calls the first meeting. The task force can select the chair at the first meeting. A majority is the quorum, and then the task force ceases to exist on February first of next year, and then compensation reimbursement. Basically, if you're not otherwise compensated through your job, then we'll reimburse you and compensate you for your attendance. [Chair Matthew Birong]: K? [Speaker 5 ]: Brett Nugent, did you want an answer to your question? Would we ask Brett Oliver to come up and answer? [Chair Matthew Birong]: Happy to switch. Thank you, guys. [Representative Kate Nugent]: I brought I brought a chill and tell. Thanks, man. Welcome. You want [Ben Novogrowski]: me to stop sharing my screen, or should I keep it up there for now? [Vice Chair Lisa Hango]: That's a that's a [Chair Matthew Birong]: Yeah. I mean, it's something different. [Speaker 5 ]: Sure. Looks like [Representative Kate Nugent]: water zones. [Chair Matthew Birong]: Thank you, Autumn. [Speaker 5 ]: Thank you. [Representative Kate Nugent]: So Thomas Oliver, house judiciary, and I appear probably before you more as a practitioner of this than a representative, I guess. Having done many of these over many decades now, what I passed out was a processing form for DUI. Okay? Now there's nothing else anything like the processing of any arrestee than a DUI is the most unique of them all. If you have your standard misdemeanor crime, you detect a crime, you take a statement, you write an affidavit. [Vice Chair Lisa Hango]: That's [Representative Kate Nugent]: it. The documentation required on contact with the DUI starts right there, page one. And this is still this is in the field. All this information you have to gather right here. K? It's kinda hard to do without this form. Unless you're really good at remembering it, you will forget something. Then you turn the page and you go into Miranda rights. You have to go through the Miranda rights and get an acknowledgment. Yes or no. And then you go into an interview depending on how they answer the Miranda. And lawyer contacts. They always want to talk to a lawyer. Most most clients would wanna talk to a lawyer before they process. Right? So you contacted the the lawyer. You you sign and date all the times you attempt to contact who the lawyer was, so on and so forth. Go through the questions, and then you arrive at implied consent. Basically, this whole page is implied consent. Yeah. Where you have to check off each individual box and explain to them what this is. Now implied consent is pretty lengthy. It's pretty difficult to understand. Now imagine being drunk and tried. Allegedly drunk. Allegedly drunk. Yes. [Chair Matthew Birong]: The presumption of intoxication. Yes. [Representative Kate Nugent]: Presumption of [Ben Novogrowski]: That was just [Representative Kate Nugent]: You know, if if if someone is is minorly intoxicated or something, you might be able to get through this. Somebody who's moderately and severely intoxicated getting through this is incredibly difficult. And very often, at the end, you have to contact a lawyer when you ask them if they wanna get the sample of their breath as evidence. And you ask them if they wanna talk to a lawyer, they'll always say, I already did. Did they tell you to do? Well, I don't know what I should do. So you call the lawyer again. And and sometimes you make these calls three and four times before you get through this process. Now mind you, this clock started the moment you pulled them over. So there's about a two hour window in which you wanna get a a a good reliable sample of someone's breath for evidence. And this is a misdemeanor. It's a first contact. No other DUIs. This this is quite cumbersome. So the glitch or not the glitch, the question is implied consent assumes that you have a driver's license in the state of Vermont that if you're driving on that driver's license, that you are giving consent for us to take a sample of your breath as evidence. Why are we asking again for your consent? At we we we you can waste an hour right here on implied consent. I'll pass that around. And that that hour is is very critical in the timing of when the stop occurred when you have to have the sample of the graph. Right now, most DUIs take anywhere from two to four hours to process. Two is very short. Four hours is close to normal by the time you make contact and release the person to someone or do whatever you have to do. So I'm just I'm trying to see if there was a way, not just implied consent, to take this burdensome recumbent pile of work and condense it into something more usable. What do we need to gather for evidence? What is being used on this page and what isn't being used in courts, for instance? Like the interview, most of us, if I if if mister representative Goodenow might be able to say better, frequently, when we process, we don't interview the person. The interview is fairly short, but we do read Miranda because we're asking things after we have obviously made a decision to arrest them. Any questions? There we go. [Speaker 6 ]: Why are incriminating questions on page one and Miranda's on [Ben Novogrowski]: page one? [Representative Kate Nugent]: Decision to process yet. No. [Speaker 6 ]: But you base that decision process on the responses from individual. Correct. [Chair Matthew Birong]: Do you have something, counsel? [Ben Novogrowski]: Yeah. And just to kinda provide some context, so there's that implied consent portion that I represent all [Representative Kate Nugent]: of our time out. So that [Ben Novogrowski]: is in statute. So in twenty three vehicle twelve o two d six, it lists a series of information points that the law enforcement officer needs to state to the suspect. So this is part of this is a statutory requirement. So part of this task force would examine whether that statutory requirement is really necessary under the constitution when, as representative Oliver said, there's already implied consent in the possession of your license and then subsequent use of the roads. You've you've already consented to these breath tests or if need be, blood or alcohol or blood or saliva test. When one attains [Chair Matthew Birong]: the said license. Yes. Correct. You are making a sort of an agreement that that you will subject yourself to these screenings. [Representative Kate Nugent]: However sorry. I forgot. What if the person has an out of state license? Is another question I would ask, what if somebody has an out of state license a license [Representative Kate Nugent]: system? In Vermont. Yeah. [Representative Kate Nugent]: They're operating in in Vermont. Well, yeah, knowing there's just excuse me. They would have to know the Vermont you would think have to know that Vermont has it, like, send law. Or you can look at what many other states do. They simply spell out if you give a sample of your breath as evidence on a DUI one, this is what the punishment potentially or the consequence would be your exposure. If you refuse, this would be the exposure. [Ben Novogrowski]: Will you comply? And and that's just on the point of the out of state license. So a lot of legal doctrines are played, but, basically, through the privileges and immunities clause, you have deemed to consent by using your out of state license and using Vermont's roads Yeah. To comply with Vermont's Yeah. Statutes. And then also, you're also presumed to know Vermont's laws. [Chair Matthew Birong]: Which is the case with, like, all laws. Right? Right. I didn't know title seventeen blah blah blah. Didn't yeah. Yeah. Yeah. Yeah. I think the types [Ben Novogrowski]: of laws is not an excuse. [Speaker 5 ]: So my question was about other states. How many other states or [Representative Kate Nugent]: I've only looked at a couple, very short. [Speaker 5 ]: And they use implied consent. [Representative Kate Nugent]: Well, it wasn't implied consent necessarily. It was just, will you give a sample? Yes or no? And if yes, this was your exposure. If no, this was your about that long. [Chair Matthew Birong]: Gotcha. Here's a million dollar question. What's it? Did you go down the mall? [Ben Novogrowski]: What's that? [Representative Kate Nugent]: What was that? Yeah. It went out all all [Vice Chair Lisa Hango]: Eleven o's. [Representative Kate Nugent]: Eleven o's. Yeah. I just it was an opportunity to I looked at it as an opportunity to bring something up that I think that needs to be addressed for a very long time. I can't take a statement from somebody when [Chair Matthew Birong]: they're Representative, why don't you grab a chair and do it do that? [Ben Novogrowski]: What's that? Yeah. [Chair Matthew Birong]: Yeah. You're just raising your hand. You're right here. Why don't you just jump up? No. [Representative Kate Nugent]: I I [Chair Matthew Birong]: don't know. I'm I'm, like, asking you to make it easier. [Representative Kate Nugent]: Yeah. Yeah. Yeah. I can't take a statement from somebody that's intoxicated as a witness, but yet I can we've stopped somebody because they're impaired. Their judgment is impaired. And here I am asking for all this information when they are impaired. How do I know they're making the right decision? Well, they did talk to their lawyer, but they don't always. [Chair Matthew Birong]: Okay. And did you have anything to offer on that? [Representative Kate Nugent]: I just wanted to, I think agree with all the points that were made, and just to offer another perspective that there's a balancing act that needs to be sort of struck here when you're trying to protect someone's constitutional rights, but also ensure that the process is smooth and efficient. And I think, rep Oliver has identified an area where that may be out of whack. And what the problem from a practitioner's from a defense attorney's practitioner's perspective is that you can really confuse somebody and impact their ability to exercise their constitutional rights from the other side where they don't really know what's going on because it's so unbelievably complicated. So I think that it's really it'll be very helpful to have some individuals who are very versed in this law take a look at this and see whether it makes sense how it's happening right now or if there can be some tweaks and changes to the system so that it's operating more efficiently and also protecting the rights of, defense. [Representative Kate Nugent]: Very well said. [Ben Novogrowski]: And and also to to piggyback off of rep, Goodnough's or defense attorney analogy, there's also the concept too that the longer that a suspect is is held, the more evidence that can be gathered against them. Not only just confusion on their part because of laws, but the longer an encounter, the more chance there is to investigate and gather evidence in addition to the more paperwork that may have to be done by the police officer. And then secondly, to answer, Repango, your question about other states, that's part of why this task force is being created [Speaker 5 ]: To study that. [Ben Novogrowski]: They could examine other states as well in this analysis. Thank you. [Chair Matthew Birong]: My I think my last question just from myself is you got a commissioner of DPS or a designee. They're onboard with taking on this task. That, I don't know. Did you have that in for testing? [Representative Kate Nugent]: Well, there was some conversation about it for folks that weren't on payroll, you know, what would it cost. But most of these folks would be working, I think, during No. [Chair Matthew Birong]: No. I'm speaking specifically. To like, it says commissioner of the department of I have a AD. [Representative Kate Nugent]: Yeah. Yeah. Does it say is it and DESE or DESE? Yes. [Chair Matthew Birong]: Or it's an or. Yeah. [Representative Kate Nugent]: So yeah. [Representative Kate Nugent]: So it could be a DESE. [Chair Matthew Birong]: No. That's fine. That's fine. But they are, like, willing to take on this job. They'll, like, run this domain, this task force. [Ben Novogrowski]: They're they're I'm not aware of any testimony one way or the other. [Representative Kate Nugent]: Okay. I think they were indifferent. I don't know. We'd have [Representative Kate Nugent]: to go back and check. [Chair Matthew Birong]: Yeah. If you could ask representative Loewon that question for me, I would greatly appreciate we appreciate it. Eight thousand people do. Yes, sir. Anytime that we have an agency or department take on the responsibility of running a task force, I'd like to get their thoughts [Representative Kate Nugent]: on. Absolutely. [Representative Kate Nugent]: The question is noted. [Representative Kate Nugent]: Thank you. [Chair Matthew Birong]: And what is the son of Laura? [Representative Kate Nugent]: Well, I think I heard today it went to appropriations. [Chair Matthew Birong]: Okay. So there's there's [Representative Kate Nugent]: Alright. Cool. [Ben Novogrowski]: So that It it was on notice today to go on the floor tomorrow, but I think there were some new committee assignments that might Gotcha. [Chair Matthew Birong]: Because I my my last update was for tomorrow. So if it's going to appropriations, that gives us a little bit more time to suss out that question. Representative Wood. [Speaker 5 ]: Just a process question. Do we need to do a straw poll on that? [Chair Matthew Birong]: This would be a straw poll. Yep. This is not a formal vote. [Representative Kate Nugent]: Yep. [Chair Matthew Birong]: We're not taking possession of the boat. Yeah. [Ben Novogrowski]: Anything else for these gentlemen? No? Alright. [Chair Matthew Birong]: No. Thank you very much. Yeah. This is a a great also workshop for new members about permits, committee, jurisdiction, and drive bys. And so thank you for the exercise. Drive by. [Ben Novogrowski]: Yeah. Yeah. Yeah. Yeah. Drive through. That's a more Oh, is that a more drive through? [Vice Chair Lisa Hango]: Yeah. [Ben Novogrowski]: And if any There's, like, a [Vice Chair Lisa Hango]: regional center credit right now. [Ben Novogrowski]: If any of the new members have questions about this process, I'm happy to answer them. [Vice Chair Lisa Hango]: Thank you very much. [Representative Kate Nugent]: Thank you. Yep. Thank you. Thank you. Thank you. Thank you. [Chair Matthew Birong]: Thank you. I'm, like, trying [Speaker 5 ]: to What [Representative Kate Nugent]: was that? [Chair Matthew Birong]: Like, I don't know.

Play Clip Play Full Video Pause

SmartTranscript of House Government Operations-2025-02-11-3:30PM

This is useful for seeing what happened at the meeting without wading through the whole transcript: