SmartTranscript of House Judiciary - 2025-05-14 - 10:45 AM

[Chair Martin LaLonde]: Hi. Alright. Welcome back to the House Judiciary Committee, and we're gonna turn to h forty four, which is on third reading today. Right? Down on the side. No. No. It's [Ben Novogroski]: No. It's still second reading. [Vice Chair Thomas Burditt]: For eight for forty four? Yes. [Chair Martin LaLonde]: Oh, for some reason, I thought it was thirty. Anyway, we'll we'll take [Ben Novogroski]: So I I just confused myself when I just mentioned you. So h one zero five just got voted out this morning. So it'll be noticed tomorrow, second reading on Friday. Eight forty four, second reading this afternoon. [Chair Martin LaLonde]: Okay. So we'll take our chances that there won't be any further amendment on the floor. And if there are, I'm sure you'll tell us, but we'll take the time now while we have some witnesses to go over what is on second reading in the senate. Yes. That time of year where we have to be ahead of [Ben Novogroski]: the game a little bit. [Wade Cochran]: So Yes. [Chair Martin LaLonde]: Over to you, Ben. K. [Ben Novogroski]: Thank you. For the record, Ben Novogrovsky from the Aunce legislative council. If you just bear with me while I pull up the comparison document that I have to say did not translate very well when I sent it over to all of you. So what I'll do after the fact is just do a short side by side of the changes, and I'll send that over to Nate to distribute. But I will quickly go over, the changes between the as passed by a house version and senate proposal of the of amendment as it currently exists prior to second reading in this on senate four. So with that in mind, there really only are three changes, if you will, between the two versions. The first one, is right on the first page, on lines eleven through sixteen. So there's this and this is to address the federal regulations about anti masking of, crimes for CDL drivers. So essentially, under a series of, CFR regulations, States are required to report CDL convictions for CDL holders because of the nature of their violation. So this can be a series of things reporting. There's a a national database for this information to report any sort of criminal conduct. And so this language that you see here was suggested by the Department of Motor Vehicles to be compliant with those regulations where essentially, since these would be in family court proceedings, they would be confidential and therefore, due to those confidentiality requirements may run foul of those federal anti masking regulations. So this makes sure that any CDL drivers, if it was an offense or violation other than parking vehicle weight or vehicle defect violations are reported, to the national database. And that was language that was suggested by the DMV. Any questions on that compliance language? [Vice Chair Thomas Burditt]: Nope. [Ben Novogroski]: Good. We're gonna go, Sam. [Chair Martin LaLonde]: No. I'm sorry. I didn't see you. [Vice Chair Thomas Burditt]: Can [Chair Martin LaLonde]: So did did transportation take testimony on it? [Ben Novogroski]: No. But I do know that there is another bill that they are dealing with that is incorporating the same language. Okay. That's it. What? Go ahead. The second change is in subsection j, which was added. This is on page five, line thirteen. So if you see here, this is what created the obligation for the person to go through the evidentiary blood blood sample. Previously, it said a person suspected of violates violating the section shall not refuse the collection of an evidentiary blood sample, and it's now being changed to an affirmative obligation shall submit to the collection. That was due to discussion raised. And I believe it's from the defender general's office of inadvertently implicating the implied consent. Since you're talking about refuse, it's sort of the, antithesis of consent. So to kinda move away from language that may somehow be construed to implicate that consent doctrine, it's just that affirmative obligation to submit to the the blood draw. So that's the affirmative obligation that's imposed on the individual, but there is no penalty for not submitting. It has that portion has been changed to still have a penalty, but, it creates a knowingly mental element. So previously, it just said some, someone who refuses the collection of an evidentiary blood sample. So, theoretically, that's a strict liability prompt. If you just refuse in any form, so there is discussion or testimony centered on if someone's too incapacitated to, you know, provide that blood sample or at least kind of participate in it. Could that be construed as refusing, and do you really wanna criminalize that potential fact pattern? And so the the senate judiciary committee said, well, let's create a mental element where you need to knowingly hinder the collection in order to be charged with, with criminal refusal. So, essentially, what that means is that you have to be aware of what you're doing to the extent that it's likely you would know that your actions hinder the collection of that blood sample. So to kind of put kinda, to to put this in context, it would have to be some sort of affirmative action to hinder that collection rather than just sort of being just limp and incapacitated that may somehow be considered a refusal. [Vice Chair Thomas Burditt]: Couldn't that apply to a breath sample as well? [Ben Novogroski]: Yeah. But the breath sample is different for those criminal refusal because it's not really conduct related. It's what it is is that if you've been previously convicted under twelve o one, so the DUI violation, that's how you can be charged with criminal refusal again if you refuse. And then if you're involved in a crash or collision, that results in serious bodily injury [Vice Chair Thomas Burditt]: or death. Well, yes. I I think when I wanted to get back to the implied consent, you know, study, whatever Mhmm. Very often, they're too inebriated to understand what's going on. And then it is behavior. It is a behavior type thing. They don't understand it, and they're they're not necessarily trying to give a breath sample or just to get it, and they're completely uncooperative because of their integration. [Ben Novogroski]: Right. Right. And that was the policy choice of the senator, after kind of hearing the various testimonies. [Angela Arsenault]: Thank you. Just to understand that clearly based on what you both said that so knowingly hinders would not goes beyond what Tom's talking about. Right? The like, as you said, like, just so when you're greeted, you like, you're not [Ben Novogroski]: You're essentially in [Chair Martin LaLonde]: the accident. [Ben Novogroski]: Yeah. But you wouldn't necessarily know because you Yeah. Don't have the mental capacity at that point to know what you're doing, to know that you're actually hindering. So what this change does is create sort of that mental element where you have to be aware enough of your actions to know that they will likely lead to the hindrance of the collection of a blood sample. As opposed to before, it would just be anything that could be construed as a refusal, you could be charged. [Vice Chair Thomas Burditt]: But, Angela? [Angela Arsenault]: Yeah. I'm really curious how that's determined, but I guess it's very fact specific. Spot. Good. Lots of [Vice Chair Thomas Burditt]: people mess around to delay the inevitable drawing of the breath or blood by wasting time. They do it not perfect. You know? So then you have to go to the blood room. [Angela Arsenault]: So that would be Or [Vice Chair Thomas Burditt]: the card with a refusal because they're actually they know what they're doing. They're hindering it. They're sucking the intestinal blowing, you know, with the machine over and over and over again. [Chair Martin LaLonde]: So you know it when you see it. Yeah. That's a lot of personal [Ben Novogroski]: And this would just be for the blood sucking out the breath. [Dennis Wygmans]: Yeah. Also, like, alternatively, it can take a long time because it's a confusing process. And when you're drunk, it can be, you know, like, hard to know what is going on. That's a big time, you know, intentionally making it. But my question was just so it could be an affirmative defense to being involuntarily intox involuntarily impaired to the knowingly, hindering the collection even, like, if they said, if they're drunk and they say no. Like, so it's not a limp. They are not able to sort of, like, agree to it or anything because they're so impaired, but, like, they are impaired, and they actively decline the the the the test. Mhmm. That could still apply under the Yeah. [Ben Novogroski]: That could be a litigated issue. I you [Vice Chair Thomas Burditt]: know, whether or not [Ben Novogroski]: it's turned an affirmative defense or not, I'd have to think about a little bit more. [Dennis Wygmans]: And I was yeah. [Ben Novogroski]: But, yes, that could be something that could potentially excuse the behavior if it's litigated that way. Okay. K. Go ahead. And that's the extent of the changes. [Chair Martin LaLonde]: That's it? Yeah. [Ben Novogroski]: That's it. Between the house and the center versions. [Chair Martin LaLonde]: That's so much fun. Goodness. Wow. [Angela Arsenault]: It tastes so good. Work. [Vice Chair Thomas Burditt]: Well, that's right. [Chair Martin LaLonde]: I mean [Ben Novogroski]: And like I said, I'll get that small section by section to you all so it's clear that soft words compare [Vice Chair Thomas Burditt]: that quick [Chair Martin LaLonde]: to it. And then because we [Vice Chair Thomas Burditt]: wrote this with DUI having issues getting somebody to blow. [Chair Martin LaLonde]: And Ian spoken like a true defensive fairy over there. So I don't wanna word this. As far as [Dennis Wygmans]: charging them with refusal or [Chair Martin LaLonde]: going to blood room, which happens more often? [Vice Chair Thomas Burditt]: Refuse. The refusal. [Chair Martin LaLonde]: I think charge them with the refusal. [Vice Chair Thomas Burditt]: Yeah. If if they're messing around. Right. It's not very often a year, and so we agree that they don't you can usually get them to cooperate. Yep. But then it just some just don't make wise decisions, obviously, when they're very they don't understand what they're doing or what they have the case part. Right. Yeah. Good. Yep. [Chair Martin LaLonde]: Alright. Thank you, Ben. Dennis Wiggins, if you can join us and weigh in on on these changes. Sure. [Vice Chair Thomas Burditt]: Yeah. Thanks, Ben. Okay. [Speaker 6 ]: Dennis Wiggins, traffic safety resource prosecutor, department of states, attorneys, and sheriffs. So on the first change, we agree with Department of Motor Vehicles. Last year, the House and Senate passed a bill that did help to conform Vermont law with that of the federal law as it relates to commercial motor vehicle licenses. I think we discussed it, but it might help to refresh your recollection that commercial driver's licenses aren't state issued. They're federal, licenses. Essentially, when you, apply and are, granted that license, your Vermont license is given up. And so you now have a federal license to operate a commercial motor vehicle. Obviously, because you're a big part of interstate commerce, it makes sense that we don't have a bunch of, you know, fifty different laws, as it relates to commercial driver's licenses. And so there's a, you know, a nationwide, program through the Federal Motor Carriers Safety Administration that addresses these licenses. What masking is is that, essentially, we are, as state prosecutors, for lack of a better word, a puppet for the federal scheme. And that is that if there is actual evidence of DUI or other infractions, we're not allowed to amend those cases. Basically, they have to go to trial if the facts are there. We can resolve them in a plea agreement if there are evidentiary problems. But if the facts are there, we're pretty much our hands are tied as our judges or anybody else involved in the in the process. And so what all this does is it says that, because we do consider eighteen year olds to be children in Vermont, eighteen and above is the requirement in order to obtain a commercial driver's license. Those also have to be reported in conformity, not only with state law but also the federal law. And so we agree that that, I think, is appropriate under the circumstances. With regard to hindering, it may assist to comprehend what, the defense of voluntary intoxication is, and that is that you have gotten yourself drunk to the point where you can't appreciate the natures of your acts. Pretty simple definition, and it is a case by case analysis. You have to really kinda look at the facts and say, this person really has no idea what's going on. Under those circumstances, the only way to get a blood warrant is because under the officers, you know, totality of circumstances, considering all of them, under their, belief that the person is incapable of being a breast sample whatsoever. That's different than the refusal. Refusal is always a required, a knowing element to it. A person can only refuse through words or actions or a combination thereof if it is an expression of their, unwillingness, to consent. I'm not familiar with a certain case with a single case where someone's been charged with refusal, because they're so impaired that they can't provide a breath or blood sample. In fact, the Constitution, supports taking blood samples from people who are unconscious, for example, who can't give. And then we go through the applied consent after the fact with them. So from our perspective, it wasn't an issue going forward. We discussed the same or very similar language in one version of this with you all. We settled on refusal based on, Judge Zonay's input and why not use phrases that are common, phrases that have meaning in DUI, context. A lot of the concerns that were raised were addressed through Schmerberg v. California, through North Dakota, v. Neville. And then in our state, Justice Johnson, and State v. Morale determined that these aren't compelled speech issues, that they aren't, you know, because a person is given the option. Either you, you know, capitulate or you don't. From our perspective, however, we don't have a problem with the way that it's worded, now. We believe that hindering, you know, refusal through words or actions is is hindering. It's our case law. I think it's Davey Bernard actually says that. So from our perspective, we don't think it's a problem. As far as requiring a person to submit, we think that it also fits because it's in the same, you know, legislative scheme, if you will. So we support the language change even if it will lead to possible future litigation [Chair Martin LaLonde]: on the matter. That's what we do. I'm sorry. So questions, Peter? [Vice Chair Thomas Burditt]: Hope that was all. [Chair Martin LaLonde]: Yeah. No worries. [Dennis Wygmans]: Yeah. Can you just walk me through, I think, only because I'm gonna have to [Vice Chair Thomas Burditt]: talk about it on the floor, but [Dennis Wygmans]: Yeah. How the chain on page five so not on the hindering, but the other change that was made. Yeah. We we did a person shall submit [Vice Chair Thomas Burditt]: Right. [Dennis Wygmans]: Collection versus, [Vice Chair Thomas Burditt]: you know, shall [Chair Martin LaLonde]: not refuse. [Speaker 6 ]: Can you from my perspective, this makes one out of difference. [Dennis Wygmans]: Yeah. Okay. That's kinda [Speaker 6 ]: the way I read it. Shall submit. Yes. It takes out of it the element of, you know, whether or not you're granting consent. But, again, if a person's so inebriated that they're unconscious, we have the other DUI we can charge, you know, which is compared to the slightest degree. We don't need a reading on those folks generally. Yeah. The real purpose of this from our perspective was to bring into people, into the d m I DUI scheme who were in these impeding or obstruction cases that weren't really in addressing the underlying, criminogenic needs. We really wanted to get them into the DUI framework so that they can go through the process of being relicensed, well, getting a suspension, being relicensed. And also, we're going to ensure them they're going to have to carry insurance. Right? So they're going to have to insure themselves and their own acts against the public, right, so that they won't hurt people and people can't be have their needs met because they've done so. That was our concern. [Dennis Wygmans]: Yeah. I just have memory from when we were looking at it that we had submit originally, and then we turned it to refuse, shall not refuse for some reason. [Speaker 6 ]: Yeah. That was based on Judge Zoney's, testimony that refuse is a well defined phrase. [Dennis Wygmans]: Yeah. [Speaker 6 ]: It, you know, goes pretty far back in our DUI law. You know, it wasn't in the initial statute back in nineteen seventeen, but, was in subsequent statutes before we have the scheme that we basically see now, which was, you know, enacted in nineteen sixty nine. So [Dennis Wygmans]: Good. Yeah. So do you know what the rationale for switching it to submit? If it's [Speaker 6 ]: I just wanna And I'm only guessing, but it goes to how our warrants are drafted. The warrant tells the law enforcement officer that the law enforcement officer has to go and draw the you know, get the blood drawn. It doesn't tell the object, the person, the subject, that they have to do anything. Okay? And so saying refuse seems to be saying, like, wait. You've got an obligation under this warrant. Whereas submit means you're acknowledging there's a warrant there, and you have to submit to it. [Vice Chair Thomas Burditt]: Okay. [Speaker 6 ]: Does that make sense? [Vice Chair Thomas Burditt]: Yep. Thank you. [Speaker 6 ]: I think it has to do with that element. I don't know. [Ben Novogroski]: Yeah. That that's one of what the defendant general's testimony was and said it was [Vice Chair Thomas Burditt]: that you were removing it from a sort [Ben Novogroski]: of consent to a document that you're not obligated to follow. [Dennis Wygmans]: Yeah. Yeah. Okay. Because because it's an imposition on [Vice Chair Thomas Burditt]: the law enforcement officer with warrants. [Ben Novogroski]: So not an imposition on the on [Vice Chair Thomas Burditt]: the subject. [Speaker 6 ]: Yep. Yep. And our law acknowledges that if you look at twelve o three where it talks about the circumstances where you can get a warrant for blood when there's been a crash and someone's been injured or has been killed as a result. You have to get a separate order from the court to submit to that warrant if the person refuses. Yeah. [Dennis Wygmans]: Okay. That's that's very helpful. [Vice Chair Thomas Burditt]: Thank you. Oh, I was just yeah. It's been a long time since I practice the any kind of DUI law. Yeah. They have to be able Yeah. So I have. I do remember a few of the fake consciousness. Yeah. And, you know, you get to the hospital and the doctor says, no. They're fine. Watch. You know? And it's a pretty [Speaker 6 ]: high bar as far as voluntary intoxication is concerned. You seriously have to be so drunk. You have no idea what you're doing. [Ben Novogroski]: Just instantly go for review book. [Speaker 6 ]: I haven't seen some people behind the wheel on the little circuits. [Wade Cochran]: You didn't, Zack? [Vice Chair Thomas Burditt]: Oh, about your name. Alright. [Chair Martin LaLonde]: Thank you very much. Thank you. So we'll hear from Wade next. Wade Cochran, director of enforcement safety. [Wade Cochran]: Thank you for being here. Thank you. Good morning, Greg Cochran, director of enforcement and safety. And I like going after Ben and Dennis because I have very little to add. We had a concern on page one with some wording with the CDL, and that has been changed. So we we definitely agree with what is what has been changed to cover our federal guidelines that we have to go by. And that's pretty much what I have [Chair Martin LaLonde]: for this one. Well, so we can have that record and hear that. So any questions after that? Natsini, thank you very much. What? Yeah. No. Go ahead, Dan. [Wade Cochran]: What is the blood level for CDL? CDL, I would have to look. I believe it's an o four. That's oh, yeah. Yeah. [Speaker 6 ]: Well, where? O four. Yeah. [Chair Martin LaLonde]: Why did I think it was two? O two is for bus drivers. [Speaker 6 ]: It's a reverse bus. Yeah. [Chair Martin LaLonde]: A bus for kids. Right? [Angela Arsenault]: Correct. Yes. [Dennis Wygmans]: Thank you. Yeah. Yeah. Okay. I I will have one question. Okay. Do you feel good about so we have a in the I'm assuming the language for you specifically is lines fourteen through sixteen on page one. Correct. So operating commercial motor vehicle with any offense or violation of any any traffic control law other than, so we have parking, vehicle weight, or vehicle defect violations. Do you feel comfortable that those three capture all of the things that you need in [Wade Cochran]: this We do, and we spoke to a staff attorney who felt that way as well. So should should be good. [Ben Novogroski]: One thing on that front, my understanding of service is that that also mirrors the CFR language. It does. Yeah. So we're bringing the same language into the ops and tune. [Dennis Wygmans]: Excellent. Thanks. [Chair Martin LaLonde]: Anything else? Alright. Thank you [Wade Cochran]: very much. Here. [Chair Martin LaLonde]: Alright. So we have two other witnesses, but they're not until after the floor, Marshall Paul and judge Sone. But before we break, I I would like to kind of finalize, the s twelve and where we are with that. I know that, you know, we've been talking about whether to keep essentially where we are right now with that one change for Posey plaintiffs, I mean, defendants. I mean, I could take a straw poll on on staying where we are and not be able to look the embezzlement or or people. I know, I think I know understand what exact is. Do do you want me to take a straw poll on on that? Should I take a straw poll? A good point. But [Dennis Wygmans]: Yeah. Okay. Well, I mean [Vice Chair Thomas Burditt]: Okay. [Dennis Wygmans]: We're looking for a house. [Chair Martin LaLonde]: Yeah. No. That's fine. [Dennis Wygmans]: I just it's it's a waste of time. [Chair Martin LaLonde]: Yeah. Okay. Yep. Because, yeah, I think I read the probably the same way. [Dennis Wygmans]: Yeah. Yeah. I'm not an idiot. [Chair Martin LaLonde]: So Okay. Alright. So in that case, we will I Michelle will have the edited final version for us right after the four. We'll go down that, then we'll have the two

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