Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: Alright. Welcome back to the House Judiciary Committee this Wednesday morning, April 1, and we're turning now to s two zero three. And over to you, Eric, to give us a walk through. And then we have one witness this morning and then one witness this afternoon. I don't know that we'll need more witnesses. I've reached out to judge Zonay. He does not need to touch on this one. So this could be short and sweetly open. Over to you.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes. Good morning. Eric Fitzpatrick with the Office of Legislative Counsel here to do the walkthrough for the committee of S203, which is an act relating to penalties for second or subsequent violations of operating a motor vehicle under the influence of alcohol or drugs. So this is a statute, a bill that involves DUI generally, but it's a I don't wanna say a simple issue because that always ends up being a problem, but I'll say it's a discrete issue. It's a very discrete issue, right, related to DUI and specifically to multiple offenses, penalties for subsequent offenses. So the way the penalty system works right now for DUI, if you look at page one, lines eight through 10, you'll see what's the penalty for a first offense. It's right there. It's a two year misdemeanor, dollars $7.50 fine. That's not changed by the bill, but that's what the penalty is now for a DUI first. And the structure of multiple offenses generally is that if you get an offense after that first one, a second offense, a third offense, third offense, a subsequent, the penalties go up. So the penalties become more significant if you have a prior DUI, in other words. So that structure is existing law, and this proposes a clarification to that structure because not every subsequent offense will necessarily count as far as establishing whether you've had a prior DUI conviction. And the reason for that is because the law has what you could think of as a fresh start provision or some could think of it as safe harbor. However you want to think of it, the idea is that if you go a long enough time, if you have a DUI, and if you go a long enough period of time before you get a second one, well, then the first one doesn't count against you. Second one will still count as a first if you've gone a certain period of time without getting another one. And the period of time under existing law is twenty years. So if you go twenty years, and after that first one, and you never got another one in the mean in the intervening time, well, then you get another one. Well, that still counts as a first. That makes sense for that structure? Yeah. So the key point is, and that's what's being addressed with this language in S203 is, how do you count that intervening twenty years? And the wonder under existing law, the way it's counted is the twenty years starts with your conviction for the first, right? And then if you get convicted again, that would be your second. So if you haven't gotten a, or I should say, if you have another conviction that's happened during that period, then your second one would count as a second. The issue that has come up in practice, and you'll hear more from your witnesses about this, is that because someone might get charged with a second offense, and because of the length of time that it can take for a case to wind its way through the court system to Perhaps there's a trial that could be subject to a trial. It could end up being significantly longer than twenty years before the person would actually get convicted of the second. So in that case, the person would have, say, just to pick a number, have a prior conviction that had actually been twenty one years before the previous conviction. But in that case, because of the language of the statute, convicted of violating, who's been convicted of a violation within the previous twenty years, that person would still get a sub score. See, that would still count as a second offense, even though it was twenty one years after the conviction for the first one. So Can you walk that through one more time? Yeah. Yeah. So let's say a person gets convicted Can you do 2,000 and Yeah. Yeah. Right. Pick the easiest numbers. Yeah. Right. Right. So the person convicted, again, pick pick a number we're all familiar with, July 1, let's say. 07/01/2000. They convicted a DUI. And then on, say, 07/01/2020

[Rep. Martin LaLonde (Chair)]: How about 07/01/2019? What happens if it's 07/01/2019, then it's not convicted, but it has, maybe he violates the section?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, there's no answer to that under the current law. Because the current law depends on the conviction, not on when you got stopped by, when you got

[Rep. Martin LaLonde (Chair)]: Right, So the conviction doesn't happen until 2021. Know, 2019. Isn't that the situation this is going after?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, that kind of situation. Exactly. Exactly. That's what I was trying to say, but maybe I didn't say it.

[Rep. Ian Goodnow (Member)]: No, no. So the way that actually would happen in practice is that in 2019, 07/01/2019, they charged that person with a DUI tooth, Because at the time, looking at the They're like, Okay, they got a DUI in 2000. That was less than twenty years ago. But then it just takes so long that they actually went to trial, they would have to be convicted of DUI one? Correct.

[Rep. Martin LaLonde (Chair)]: Wow. So this fixes that?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Exactly. So the idea here is that, as you were just saying, that what they're charged with the DUI second, because the offense in the sense of the law enforcement officer pulled them over and their breath tested them and everything, if that all happened on 07/01/2019, then that would be the opposite date. So that because you see the language is proposed, instead of, on line 11, instead of person convicted violating, a person who violates this title, and the violation happens right there, as opposed to the conviction. So that's when the outside end of the twenty year clock is the violation. So they could they violated up to, say, 06/30/2020, in our hypothetical, it would still count as a second. But if it were July 2 I'm not sure how July 1 works, so I'm gonna skip over that. Let's leave that up to the courts. But if it's July 2, well then, it's first. That's the idea. Sure.

[Unidentified Committee Member]: Yeah. So just to reflect it with us because there's often pleadings. So you're charged with a DUI that nineteen years or whatever it is, but then it pleads down to negligent operation or something like that. You still can't be held for a DUI. Right? It's whatever Correct. That's right. It's whatever the resolution is.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right. If it opens the debits. Yeah. But that wouldn't count as a second.

[Unidentified Committee Member]: Yeah, I have a question, but it might be for a practitioner. Are we gonna hear from him?

[Rep. Martin LaLonde (Chair)]: Yes. He should be here in two minutes.

[Unidentified Committee Member]: Maybe I'll ask Ian someday.

[Rep. Martin LaLonde (Chair)]: We can ask him.

[Unidentified Committee Member]: It's more of a curiosity about changing charges once a date, if you've ever had to change a charge because the date passes. Anyway.

[Rep. Ian Goodnow (Member)]: I bet what would happen is that a widely defense attorney would not Credit roll. Credit roll. It goes to trial maybe, because that's why it's delayed so long. What DUI two takes over two years or something to actually. And so eventually, this trial and then actually at sentencing, or maybe with the jury instruction, they're like, well, actually, it's been more than twenty years.

[Unidentified Committee Member]: Yeah. Interesting.

[Rep. Martin LaLonde (Chair)]: So did you want to walk through the third and fourth as well? Actually,

[Eric Fitzpatrick (Office of Legislative Counsel)]: there is something I have to mention there. But generally speaking, so the same concept applies for third and fourth offenses as well. Right? So you count. So again, because the penalties are stepped up with each subsequent offense. So third offense starts in the bottom of page one, goes over on to page two. Same thing here. See if, again, if you get a third offense and then you have a previous at least one conviction within the last twenty years line two, page page two, preceding the date of the third violation. So, again, it's not the not the third conviction. It's the third violation that's your operative time that you counted on. Same thing, subsection e, further down page two. This is your fourth or subsequent offense. So in that situation, again, it's if you violate it you violate DUI and you've got been convicted three or more times, and with at least one of those convictions happening twenty years preceding the date of the fourth violation, That's similar to what we're talking about. So it's the it's the most recent violation, not the most recent conviction that is the operative time period. However, there on line 16, page two, and this is something that Hillary taught because it sort of gives me a little segue to let you know that DUI is one of those topics that I've been covering so far this year. It's actually was in Ben's portfolio and will be in Hillary's portfolio going forward. She couldn't be here this morning because she's in the sanctuary. And when we were talking about this, because we were talking about that as this moves forward in the House, you may see her in here on this bill, and she pointed out a correction that might need to be made, which is that the subsection e that we're talking about there on page two had to do with fourth or subsequent offenses. So on line 16, it's not necessarily a fourth offense as the most the most recent one that's preceding that date. So the you might want to add, I would suggest that you do add, the two words or subsequent after the word fourth so that the most recent conviction has to have been within the twenty years preceding the date of the fourth or subsequent violation, because it may have been that by that point, they've got to a fifth, and they count back twenty years from the date of that one. You're not counting back from the fourth. That makes sense? Yeah. A

[Unidentified Committee Member]: couple of people aren't getting that hot pink.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I know. I tell you. That's great.

[Rep. Martin LaLonde (Chair)]: That's awesome.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Any other questions for Eric?

[Rep. Martin LaLonde (Chair)]: Thank you very much, Eric. You bet. Thank you. Dennis, you got here just in time. Perfect timing. Thanks. So we started a little bit early.

[Rep. Ian Goodnow (Member)]: Yeah, I noticed it.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: Had every roadblock and way to get here at the time. They had a down caroline in Essex, and one point of entry was a new one for me.

[Unidentified Committee Member]: So, yeah.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: It's like loading dock without an arrow. On that end, there's no barriers

[Eric Fitzpatrick (Office of Legislative Counsel)]: to working on. Figured it out.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: Put Yeah. On a detective hat and knock out what figuring putting docs are usually in the back. Okay,

[Rep. Martin LaLonde (Chair)]: yeah. Go ahead and identify yourself and proceed with the question.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: My name is Dennis Wygmans, W Y G M A N S. I am what's called a traffic safety resource prosecutor. I work for the Department of State Attorneys and Sheriffs. And so far as our support for the amendment, we have two decisions that are floating around the state right now that oppose each other as far as interpreting the statute is concerned. One decision is reading it very strictly, and that it says conviction read up front. And so there, that court's decision is basically that we can't count it as a DUI three, for example, until the person is actually convicted of that DUI three. So we run into an accounting problem. It would be the only statutory area in our criminal law where our statutes of limitations wouldn't apply once the prosecution starts. And what I mean by that is that a statutes of limitations toll once a prosecution commences. And so, for example, down in Bennington County right now, there's a fellow who was picked up on a warrant a couple weeks ago for DUI-two. That case is nine years old, but because he absconded, it can only be prosecuted as a DUI-one. Because his subsequent nine years is added to the time frame, and so he's beyond that twenty year window in that particular court's interpretation. The opposing interpretation is that the twenty year look back looks at the date of the offense as opposed to the date of the new conviction. So we have an unequal application of law statewide. I recall some of the conversation that was ongoing back when the twenty year look back was put into place. And part of the conversation was trying not to end up in that same window for those who have practiced DUI law for any period of time. Will recall the savings clause that we had that was enacted in 1991, which was then repealed in 1999. During that eight years, there was a lot of litigation. And there was a lot of litigation in 2,000, three cases made at the Supreme Court on how to interpret that so called savings clause. And so it's our position that the legislative intent has been consistent with the way that all the courts have read this statute since 2019, since the twenty year look back was added up until this new decision in 2025 that you have to use the conviction date as the controlling date as opposed to the offense date. The concern is really it gives great incentive for those who might be facing that in EUI five to leave the jurisdiction, to flee prosecution, knowing that if they were to do so, we're applying that other court's interpretation, they could avoid the DUI five altogether if they stay away long enough. What's the case? In Bennington, I don't have the

[Rep. Ian Goodnow (Member)]: Oh, the Supreme Court case from 2025.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: Oh, there's no case. It was repealed by the legislature of mine. It was oh, the case in and it's a Windham County case. I'd have to get that to you. I can send that to you all if you're interested in seeing that interpretation. I know that the state's attorney's argument in it was that in the rules of statutory construction, it's not supposed to end up in what's considered an absurd result. And so the state's attorney was arguing that it would be an absurd result in just DUI subsequent offenses, hand the keys to the car, if you will, to the defendant to flee the jurisdiction to avoid prosecution. Whereas the other interpretation, that was an Orleans County case, And I can get you both cases so you can see that interpretation was that it would be an absurd result to construct that the legislative intent was to control have that be the control date. And I saw it as presenting other issues like probable cause. How do we have probable cause to charge DUI three if we can't prove that those two other convictions are at play? Essentially, we'd be forced to amend it in every case, which I think, if you're just reading it strictly, our Supreme Court may agree that it would also forego any types of depositions that might be present in a felony case, for example, because now we have to treat each one as

[Eric Fitzpatrick (Office of Legislative Counsel)]: if it were a DUI one. And

[Rep. Martin LaLonde (Chair)]: you're confident that by saying the date of the violation that that's going be underscored?

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: So I think that in our initial draft, if you will, we were saying date of offense to make it very clear. The problem with data violation is that there's been some drafting. If you look at the expungement statute, for example, the expungement statute appears to treat violation and conviction interchangeably. And so our concern would be that if we use violation versus conviction, that because there's been conflated use, if you will, we're maybe going to run into some courts that say, Well, I have no idea what violation means.

[Rep. Martin LaLonde (Chair)]: If we apply But why did it end up being violation? Where did that change come from?

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: As far as the Title XIII expungement statute? Well, no, no. In here, you're saying that the initial Oh, that change was suggested by council, judge council. Okay. Yeah. Our concern is the obvious one that we would like to make it really perfectly clear what we're talking about here. And because of different uses, strictly speaking, Title 23 has a definition of what a conviction means, and that we talked about last session. And that is a pretty broad definition to include all adjudications.

[Rep. Martin LaLonde (Chair)]: Okay, Karen, then Ian.

[Rep. Karen Dolan (Member)]: Now I just blanked up my question for this.

[Rep. Ian Goodnow (Member)]: Yeah, I think this is probably more of a question to the conversation that happened with the twenty year look back originally. I feel like it would make more sense if we were using the same for both the look back and the current thing. So violation violation, conviction conviction. But now we've got what trying to really put into statute here is conviction violation. Was there discussion back in the original twenty year look back why not to do the violation date for the initial conviction so that, for example, someone who really litigated that initial DUI, their twenty year look back is now maybe two years sooner because it took that long to get convicted of DUI.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: So I wasn't a part of that. I was a mere state's attorney then as opposed to traffic safety resource prosecutor. And I wasn't a part of those hearings. I just remember the conversations that occurred. One was really looking at what's fair and what do we see as far as recidivism is concerned and so on. And it was settled upon twenty years because that seemed like a good window that included most repeat offenders, but excluded people that maybe got one when they were in college or something

[Eric Fitzpatrick (Office of Legislative Counsel)]: like that.

[Rep. Ian Goodnow (Member)]: But I don't mean the twenty years. I just meant Oh,

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: the use of that word? Yeah, I couldn't tell you that.

[Rep. Ian Goodnow (Member)]: And why not have it be the conviction date of the original DUI and not the conviction date of the original DUI for the timing. In the violation of the original Oh, I'm sorry. The violation date of the original DUI and the conviction date. If we're now looking at we're trying to really clarify

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: Now I comprehend what you're asking. So I think in the sense of fairness, that makes the most sense, because then everybody's treated exactly the same. Everybody has that same twenty year period. No matter how hard you litigate your case, you're still looking at the same time frame. The problem with that is that it will cost DMV great expense and work to update all of their systems to reflect. So if you were to impose a more fair twenty year look back, everybody who all their violation dates are what count, then you'd want to do it prospectively and not retroactively. Does that make sense?

[Rep. Martin LaLonde (Chair)]: Yeah, So it's an ability to do this. They don't capture the violation date, or they haven't in the past.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: Correct. They've always counted the conviction date.

[Rep. Martin LaLonde (Chair)]: That's what you look at to determine the twenty years.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: Right. So we look at the current well, when I was charging them, we looked at the current offense date, and then we looked at the previous conviction dates. Depending upon what court you're in now, you're going to look at either the current offense date or hope it resolves soon. But historically, we haven't looked at violation to violation, which I think, in all fairness, makes the most sense because essentially, who's being active in their own defense and may litigate it further is being punished for doing so. Because their twenty year look back will be a shorter distance in time than someone who pleads at arraignment if they committed the offense on the

[Rep. Ian Goodnow (Member)]: same day. What is the DMV record that you're referring to? I guess my thought would be you look back, you see the DUI conviction, you see the docket number, then you look up that docket, you see what date the violation was, and you could run

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: it from them. I guess, what's the DMV record? But then they'd have to go and correct all of their historical records to ensure that they were within the statute. Because their historical records don't keep track of those violation dates, so they'd have to do all of the legal research in every single case to determine what the violation date was and then apply that.

[Rep. Ian Goodnow (Member)]: What would keep us from doing it prospectively?

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: Prospectively, they'd have to probably change their software program. But beyond that, it's more doable. But you'd have to ask DMV counsel about that more so than myself.

[Unidentified Committee Member]: I know Karen had a question first. Mine's about this specific review. Is that okay? Just to test that, I understand. How will so how but we are changing the bill proposes to change it to violation date for subsequent if it exists. How is that Just trying to get my head around. That's not an issue with the DMV.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: Yeah, can explain. Because the DMV is going to be looking at the convictions, the previous convictions. And then this new one will count towards maybe a future case. But this amendment is really limited to trial. When does the trial date occur? And what penalty can be applied based on the circumstances? It doesn't really implicate DMV's recordkeeping because it's consistent with how they're keeping records right now, because they only keep track of when was that previous conviction.

[Unidentified Committee Member]: Right. Okay. So it seems like the same tool could be used to look back. Why are we using the DMV as the look back for a second?

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: So it's also interesting to look at they keep essentially two sets of records, one for our DUI civil cases. Those would be largely tied to violation dates, because once you get a second or subsequent, then eleventh day, you're going be suspended from the date of your offense. However, DOI-1s is the bulk of our DUIs, and those are all conviction date, not violation date.

[Unidentified Committee Member]: So there's really not necessarily a record. You'd have to go to police records or something or some other record for the violation phase.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: Right. For court records, probably would be the most accurate.

[Rep. Martin LaLonde (Chair)]: Yeah.

[Unidentified Committee Member]: It's still relevant. I don't see that we have judiciary coming in on this, or can we get them in to

[Rep. Martin LaLonde (Chair)]: I reached out to Judsona. He didn't feel a need.

[Unidentified Committee Member]: Okay. It seems like it would be good to make sure we get their understanding of the violate part versus the offense or

[Rep. Martin LaLonde (Chair)]: We can ask. Maybe not.

[Unidentified Committee Member]: There's a question though about how it's interpreted. Correct.

[Rep. Martin LaLonde (Chair)]: We'll also ask legislative council why they voted violation instead of offense.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right now. Sure. Why don't we try it? Because violation is the word that's usually sent to. You look elsewhere in the statute in an existing law. Under the word being struck out, convicted of violating, nine-twelve, convicted of another violation, line 21, then convicted of two types of violations, so went with a consistent language in the statute. And for a little bit more background, this is the first time I've heard the defense co shooter when that plane was run by the Windham County State's Attorney, and he testified downstairs, they said she's fine.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: I think it will most likely clarify.

[Rep. Ian Goodnow (Member)]: I'm just

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: a boot I'm a belt and suspenders guy.

[Rep. Martin LaLonde (Chair)]: Yeah. Right. So as far as doing more, like going to the violation to the violation, that sounds Well, like no, but it also was sort of like it's something that is hopefully a quick fix for what is a problem is that that's opening up a whole bunch of new issues that we have to deal

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: with and DMV and all that. And I can't speak on there. Right.

[Rep. Martin LaLonde (Chair)]: I mean, I would suggest that this is improving the situation by clarifying that ambiguity. And that's the way it's been working anyway. It's like, and it is twenty years, it's eighteen years.

[Unidentified Committee Member]: That they'll be introduced at another time.

[Rep. Martin LaLonde (Chair)]: Yeah, I would really question against opening this up that much.

[Dennis Wygmans (Traffic Safety Resource Prosecutor, Dept. of State’s Attorneys & Sheriffs)]: It was represented to me that it would be a great expense to DMV to go back to a violation to violation.

[Rep. Martin LaLonde (Chair)]: So any event, other questions for for Dennis? We have Matt Valerio coming in at 02:30. That's our only other witness today unless Judge decides that behalf of probate judges that he wants to weigh in on the bill that we looked at this morning as from seventy nine. So it'll be short afternoon