Vermont Legislature SmartTranscripts:

[Unidentified committee staff/technician (primary mapping for early interjections)]: We

[Sen. Nader Hashim (Chair)]: are live, back in Senate Judiciary. We are taking up s one seventy eight again, the speed trial bill. We have judge Zone joining us, evening, I believe. There it is. Morning, judge.

[Unidentified committee staff/technician (primary mapping for early interjections)]: Good morning. Can you control the volume? So,

[Sen. Nader Hashim (Chair)]: judge, I'm just hoping to get your thoughts on this bill in general. I have a few questions the committee. Hopefully the committee will have some questions too and just wanted to get your perspective and take it from there.

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: All right. So good morning. Tom Zone, Chief Superior Judge. I did have a chance to see the testimony from yesterday. It's okay, the first thing I wanted to address, Senator Baruth, had a question about can, especially the judge, I think your word was ignore. If a motion is filed, can it be ignored? And the short answer to that is no. We have policies in place that when a motion is filed, then it is ripe for determination, that term is called under advisement. When a motion goes under advisement we have monthly reports and I get a copy of those reports, the judges get a copy, and we have a policy that says within ninety days something has to be decided. That's the outside. It is our expectation that motions and filings are decided well within that time, but that's the outside. And so that is not something which should happen ever. We have procedures in place and policies in place to make sure that nothing gets ignored, that everything gets addressed.

[Sen. Philip Baruth (Member)]: Thank you, judge for that. I'm wondering, so I'm assuming then you support the permissive language there that says a judge may respond as opposed to a judge shall respond?

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: I think may works. It gets you to the same place because a judge will respond. That's what we know. Thank you. When I looked at S-one 178 and I understand that it's based in part upon Massachusetts criminal rule 36. There's a distinction between the two though. The bill S-one 178 talk well let me do it this way. Massachusetts rule 36 talks about we have a timeline, if you don't meet the timeline, if the case is not tried, we commence within that timeline, the defendant is entitled to have that case dismissed and then it has exceptions for what takes things out of that timeline. It doesn't have an analysis of interest of justice factors. It doesn't have the court addressing whether you know their victim input. It doesn't have the court addressing prior record, anything like that. It's strictly time. It puts the burden on the state to show basically that the time, if you will, has not run. S-one 178 takes components of that and puts it into what we have for what's called rule 48, and I think the committee's heard about rule 48 b. Rule 48 b provides that the court can dismiss a case if it finds it's in the interest of justice and the effective administration of the court's business. And Eric Fitzpatrick talked yesterday about the survey factors, that the court would have to look at. And those are essentially those factors are taken and kind of in s one seventy eight added to the Massachusetts provisions. And so in Vermont, this bill would say, unlike Massachusetts, if you have something that's been pending for in excess of the requisite time, you can file a motion. It doesn't say you are entitled like Massachusetts that the outcome is preordained. It says you can file a motion. And then what the court has to do with that motion, the state has to respond within fourteen days. And if the state doesn't respond, the court then has the opportunity to, the court may dismiss it. But if the state responds, the court has to then look at a number of factors which mimic, mirror the SABE factors and also address the time factors from the rule 36 down in Massachusetts. That's a lot of work. It puts a lot in there because what it talks about is if we don't meet the time standard, you the defendant if the state doesn't meet it and the case isn't heard, the defendant may file a motion. Well, right now, the defendant may file a motion after six weeks or after one week, let alone waiting a year. So the the bill doesn't really give the defendant anything that they don't already have in terms of the ability to file a motion. It does, have provisions that could potentially lead to different results if the state is overwhelmed as we heard they said they would be and can't respond to everything. And then the court dismisses it because there was no response. And so it's very different than the Massachusetts bill because this will cause it. The state is correct. This this would be a lot of work. As currently structured, the Vermont bill doesn't say what the filing has to contain. It says the defendant can move. So I think Ms. McManus yesterday referenced what would essentially be a pro form a, I think she said two sentence filing. The case hasn't been brought within a year, it should be dismissed, something like that. She's correct in so far that the bill doesn't say that the filing itself has to affirmatively outline the exceptions for what was taken out to the timelines, competency, whatever the other issues may be. And so that's something that a judge might do if this bill were to pass and say, no, when you file a motion in this court, you have to establish that you're entitled to it and that you have met the year. The state doesn't have to establish that you haven't. And so I point that out because if the committee wants to go forward on this bill and try to tweak it, you would want to make it clear what is that initial burden? Is it really so easy to just file a two sentence that then puts the burden completely on the state as the state was asserting it may be? Or is the intent to say the defendant files something that shows they're entitled to make a prima facie case that it's over a year and they're entitled to file this motion for dismissal and then the state has to respond. And then who has the burden of proof? Under the SAVA case, the defendant has the burden of proof to establish that it's in the interest of justice for dismissal and the effective administration of the court's business. This bill does not get into where that burden goes specifically, and I I heard the testimony and the questions yesterday that the intent may be to say that the state has to file and establish that dismissal would not be in the interest of justice or the effective administration of the court's business. And so that would be some language that you would want to look at to try to focus as to exactly where is the burden and how is that burden established. But this bill as drafted, it creates a process with a lot of rules and a lot of exceptions that someone's going to have to go through. One of the exceptions that I note is, and it's the same as in Massachusetts, one of the exceptions says essentially you exclude time from other cases waiting for trial. Well, what have we been talking about for the past year or so? That's individuals with multiple cases, five plus. So we know that there's going to be a number of individuals where these cases are excluded because we can't try every case at once. Generally one case goes to a jury, a jury's there for three months, so in theory if you have four cases it would take no less than a year to try all those cases because you can't go to the same jury for each one. And so I think there's some issues like that as far as excluding time that would come up practically speaking, and I have not checked it with Massachusetts colleagues or looked into research in Massachusetts as to how that has played out. The rule in Massachusetts is a rule of case management, administrative case management. That's actually how it is phrased also. It's criminal procedure rule 36 colon case management. This S-one 178, it's an attempt at case management, but it's also an interest of justice. Again, it takes us right back to that. If we have to consider the same factors as we have in SAVA, we're looking at the interest of justice and it's not just a speedy trial act. It's an act of speedy trial and interest of justice. So it basically combines the two things that we currently have in Rule 48. It combines that with a speedy trial component that Rule 36 down in Massachusetts has. Any questions?

[Sen. Nader Hashim (Chair)]: Senator Harshim.

[Sen. Robert 'Bob' Norris (Vice Chair)]: Yeah. Doug Soni, I understand the read for the bill, but in your opinion, my concern would be the backlog as it exists today, and this is the second time we've heard it is a book, more burden on the state or whatever else, how do you think that this would affect the backlog, if any?

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: That is a question that I've been wrestling with. If you assume that there are a number of filings made and the state doesn't respond and the court can just dismiss cases, backlog is gonna it's gonna help that the that the matters would be able to have cases dismissed. If you assume that there's gonna be a motion filed, the state will oppose it and require the court to engage in the analysis that's set forth in the bill of not only the time standards, but also the standards as far as the other factors, the SABE factors, it has the potential to take what is intended to be able to move through cases quicker and start adding more cases for us to have to address and divert us. So instead of addressing the case and getting it heard, we're addressing the dismissal at a heightened level. And so again, a defendant has the right today to make that filing. And there's a difference, there would be a different potential answer to that if it was a strict speedy trial as opposed to with all the factors in it because it's not as much. Did you hit twelve months in one day? If the answer to that is yes, the case is dismissed. That's Massachusetts as I understand it. Something like that could help the backlog. It's pretty clear. Now, of course, would be, I think the challenge will be looking at all those exceptions and trying to wade through them and having arguments over, well, is accepted, that's not where the time is. But there are some cases that I don't think that would apply, and so it would make it clear and that would have the potential to address them. But I think there'll be a lot of cases where you're addressing the situation of the factors and the interest of justice factors. So it does have the potential. I don't think the way it's written now it would lead to the type of result that is intended. I do think it would lead to a lot of work and the potential for more court time on these types of cases. But again, that's because of the structure.

[Sen. Nader Hashim (Chair)]: Yeah, just general comment, I think, you know, one of the things that I've been grappling with since we started this is the idea of automatic dismissals weighed against the giving the state the opportunity to say why a certain case actually should continue staying on the docket. And I think that it is fair to have that opportunity for the state to say, these are the reasons that we need to, that this case has been lingering for so long. But yes, then in addition, have the workload that would be added onto it. I guess that's just a general comment. And the other thing I wanted to clarify, my own understanding here is I do agree that the defendant does have the right to make such a filing right now. My understanding is, though, that the burden is on them to prove the interest of justice, and, you know, they're not filing two sentence motions. They're filing, you know, five or 10 page motions that are 48 motions. The intent that I'm trying to get at here or the goal that I'm trying to get at here is once the case has been lingering for such a long time, the burden then flips if a motion is filed by the defense. The burden then flips onto the CE, in essence demanding an explanation from the state as to why they believe that the case should continue staying on the docket. So I guess I'm not sure that I have a question in that, but if you have any any response, I'm happy to hear.

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: You are correct. This bill does go in the direction of for this category of cases flipping the burden from the defendant under the Sade case. And I see Eric has come into the room under, we're going to say Fitzpatrick today, under the Fitzpatrick case. Little and I don't know if Eric is aware of this, but I was actually trial counsel and appellate counsel in the Fitzpatrick case, so I'm very familiar with that case.

[Unidentified committee staff/technician (primary mapping for early interjections)]: I did not know that. Thank you, John.

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: Almost twenty five years ago. I'm getting old. Senator Hashim, your goal is it goes in that direction, yes. That this flips it, but the way it flips it, it still adds a lot of work and there's a lot there. We heard yesterday the issue of, well, judges can dismiss cases and the reality is that it's up to the executive branch, to decide what cases to prosecute and have ownership of the cases that they decide to prosecute. There are exceptions where the court under SAVA in our state is is permitted to have dismissals. But as we saw up in Franklin, which was discussed yesterday, what happened there was the judge got together with the state's attorney. They talked about it. My understanding is a list of cases that they felt they, if you will, didn't need to go forward on. The court then did an order saying we're going to dismiss all these unless you object. The state was essentially on board and made objections to some. Belief was that the cases that the state said, no, we wanna go forward on these went forward and weren't dismissed and the others were dismissed. And so there are mechanisms in place where if the state looks at its docket and has cases that are five years old or four or three years old and says, well, do we really need this unlawful trespass from a business that is now closed and we know we're not going to bring a witness in? The state has the ability today to dismiss those cases. And I think the reticence made in Mr. Valerio or Mr. Paul, whoever talks to you from the defense side, I think they're better suited to talk about why we're not seeing more of these motions. Because as I started off with Senator Baruth's question from yesterday, if we have these motions being filed, they will be addressed under SAVA. So if we had an onslaught of motions from defendant saying this needs to be dismissed under, SAVA factors, under rule 48 b two, the courts will be addressing those.

[Sen. Nader Hashim (Chair)]: I think not not that I'm speaking to the defender general, but my own perspective here, I think that a 48D motions are quite difficult to prove. Is that been what you've seen? Because it's my understanding that it's considered extraordinary relief to dismiss a case in the entrance of justice.

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: Over the objection of the prosecutor based upon the separation of powers. And so a bill like this brings in the questions about separation of powers and those types of issues. In the Fitzpatrick case it was then Chief Justice Amistoy dissented and he talked about that he was aware, he recognized that SAVA was the law of the state of Vermont but he also then said but basically it's up to his position was it's up to the prosecutor to prove the cases and the court shouldn't be doing that. So there has to be very extraordinary exceptional circumstances where the court does that. But that does happen. There are judges who have dismissed cases under rule 48 for, we'll call it the minor cases, delay on the docket, things like that. So that does happen. Does it happen with a frequency where I can say it's a regular occurrence? No, I don't believe that that's what occurs. But every case is different. And if there is a filing, I think that the courts have to take a close look at it. I also think that it's important for the state and defense to have discussions about cases to say, are there cases that we can both agree might be better to not have in our final cabinet so that we can focus on the other cases? And those are discussions that should be undertaken and to the extent the court can assist in providing opportunities for that, I think that's important for us to do.

[Sen. Nader Hashim (Chair)]: One other question that I had in terms of the workflow. I mean, I agree that there would be added workload onto the state, but one possibility regarding the calculation of time delays that may have happened as a result of the defense or the stay. What do you do you believe that it would somewhat even, even the scales if the responsibility or the burden was on the defense to include the calculation of time and to include an analysis of whatever delays have happened and to then conclude that we've met this certain timeline.

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: That's a function that's a function of what the do you want a bill? And this is a question for policy for the committee. Do you want a bill that says we hit this time frame, the state just basically has to send in a pro form a letter saying yes, we want this dismissed, it's over a year with no backup? Or do you want pleading that says we have been over a year and we've analyzed it and it's a prima facie case. We the defense can establish that it's been over a year and therefore we go forward. It's really a policy decision. Where do you want that burden to lie? Oftentimes the burden is on the filer to establish on the pleadings that they are entitled to the relief they seek and so if you structured it that way that would not be inconsistent with other areas of the law where you have to show on the face that yeah you're entitled to the relief that you're seeking. And so in that case if you structured it in a way to have the defense have to affirmatively represent that none of the exceptions apply or whatever it may be, That may be the way to address it, but that's a policy decision.

[Sen. Nader Hashim (Chair)]: Committee, any questions or comments? Yeah.

[Sen. Philip Baruth (Member)]: Do have one, judge.

[Sen. Robert 'Bob' Norris (Vice Chair)]: As we all know, Franklin County initiated the 48 b hearings. And and why are other judges or counties not doing the same thing if it's able to alleviate the backlog and the court is not on how much more time or personnel they needed to do justice, but they eliminated, you know, the better part of 300 cases on the books, I believe, up in Franklin County. So why aren't we pushing more in that direction?

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: The role of the court is to serve as the neutral arbiter of disputes, and there are some who would know that when Judge Maylie did that, there were some who felt that the court was reaching out too far. Others felt that that's exactly where the court should be, and our role is to administer justice. And so I think that there can be differing views among judges as to how far they want to go down that road of aggressively bringing that docket in and saying I'm going to dismiss these cases unless. And I think that in some counties, the culture has worked well where the parties are engaging in those discussions and the judge doesn't have to do that. And so the absence of other courts doing that is not necessarily a reflection of a need in a county that's not being addressed. It may be a reflection in some counties where the state's attorney is already taking steps proactively to address things. So you don't need to go to that mass dismissal aspect. But there's different factors in every county on how the prosecutor and defense, the judge, how everyone interacts on these types of cases. And so I can't say there's one specific reason why it doesn't happen. I know that there's been a highlighted when I send this bill out to the judges to say this is a bill that's being discussed, one would think that it and with the state's attorneys and defense bar, I think this will

[Unidentified committee staff/technician (primary mapping for early interjections)]: Nothing

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: else happened on this bill after today.

[Unidentified committee staff/technician (primary mapping for early interjections)]: Thank you for sufficient time.

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: I think that the fact that you have brought this before forward and have had hearings on it and are going down this road at least so far has the potential to have the state defense and the court and the judges, everyone looking at things freshly and saying, okay, what can we do to kind of go in a direction that's going to address the backlog that maybe it's not quite what S-one 178 was looking to achieve, but that can address the backlog in a more, I'll say, global manner.

[Sen. Robert 'Bob' Norris (Vice Chair)]: Thank you.

[Sen. Nader Hashim (Chair)]: Committee, anything or anything else?

[Sen. Robert 'Bob' Norris (Vice Chair)]: No, Bob. Just my question.

[Sen. Nader Hashim (Chair)]: Wondering if we might be able to speak a little bit on the administrative directive 24 and where the timelines were developed?

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: The Criminal Rules Committee there was two ways they were developed. Many years ago, there was a National Center for State Courts that came up with standard guidelines called disposition guidelines for what should it take to resolve a case for the average case knowing that some would be longer and some would be shorter. What would be an ideal time? And years ago Vermont adopted administrative orders that administrative directives that address those timelines. I think it was based upon the National Center for State Courts guidelines that were put out. A number of states went in that direction. When the pandemic hit, there was questions about what were realistic guidelines. What we know about case flow management is that if you have unrealistic guidelines, it's not helpful. So you need something that's realistic and so we studied, an analysis was done on the guidelines. It was twofold. One, Lori Canty and I did a survey of all the judges and as to what they thought would be appropriate guidelines and we came up with some guidelines that we thought for the misdemeanors and felonies and how they should be categorized. At the same time what also happened was the criminal rules committee and criminal oversight committees, they did an analysis of what should be the guidelines. Studied data, they talked to judges, they looked at cases, and it was a deep, deep dive into the guidelines. They came out with basically what Laurie and I had also come out with. In other words everything came together so after the deep analysis what the Supreme Court did was it amended the disposition guidelines based upon what was recommended by the criminal oversight committee, committee, criminal oversight subcommittee and committee as far as how we should handle the guidelines. And so those guidelines were put out. They are not a Speedy Trial Act type guideline. They are intended to say, here is your goal. Here's what you're gonna try to do. The supreme court has held that if you don't meet those guidelines, it is not a basis for dismissal. And so they're they're aspirational, and we try to meet them as much as possible.

[Sen. Nader Hashim (Chair)]: Thank you. Committee, anything else? All right, Judge, thank you very much for testifying on this. I think there's obviously not going to do any markup today or anything. I think we're going to chew on this for a little bit and think about what are potential changes we could make. Obviously, we want to get some more testimony from the defense perspective on this and see what, if anything, we can do. Yeah, so thank you. Yeah, you're doing better.

[Hon. Thomas A. Zonay (Chief Superior Judge, Vermont Judiciary)]: Have a great day.

[Sen. Robert 'Bob' Norris (Vice Chair)]: Great. It's good.

[Sen. Nader Hashim (Chair)]: Still live. We're gonna take some other

[Unidentified committee staff/technician (primary mapping for early interjections)]: Well, January is over.

[Sen. Nader Hashim (Chair)]: Yeah. I think that's exactly. Which one did you wanna start with? Oh, how about let's go

[Unidentified committee staff/technician (primary mapping for early interjections)]: with +1 86. +1 86.

[Sen. Nader Hashim (Chair)]: So +1 86. Sorry. I'm a 1. Is grabbing copies of the bills right now.

[Unidentified committee staff/technician (primary mapping for early interjections)]: What number are we on? +1 86.

[Sen. Nader Hashim (Chair)]: A last minute change since I figured that, you know, didn't wanna let go too. I appreciate that. Yeah.

[Unidentified committee staff/technician (primary mapping for early interjections)]: Oh, I'm sorry. These are,

[Sen. Nader Hashim (Chair)]: both of these are

[Unidentified committee staff/technician (primary mapping for early interjections)]: Well, that's made that sound so good. Good lights.

[Sen. Nader Hashim (Chair)]: Think both of these are pretty small bills that I consider to be tactful changes based on what I've seen over the last

[Sen. Robert 'Bob' Norris (Vice Chair)]: We don't have the text. Yep. There we go.

[Unidentified committee staff/technician (primary mapping for early interjections)]: Great. Thank you. Capacity has been.

[Sen. Nader Hashim (Chair)]: So one eighty six, this is the one that that I know Eric is gonna be able to explain much more fluently than I can. It has to do with plea agreements and Is there two? Yeah. Yeah. So we're we're getting +1 86

[Unidentified committee staff/technician (primary mapping for early interjections)]: and 203.

[Sen. Robert 'Bob' Norris (Vice Chair)]: That was not 203 or +1 86.

[Sen. Nader Hashim (Chair)]: So we're good. Thank you. So it has to do with plea agreements. That may get kicked back and forth from criminal court to juvenile court even when the juvenile wants to amend take an amended plea from a felony to a misdemeanor. And as a result, it ends up getting kicked back to, I guess you could say, the disagreement of sometimes old parties because they want to resolve it in the manner of taking a misdemeanor versus a felony. This is just one example. This is an attempt to address that. It's, in my opinion, a technical change that is you know, if we're not going to pass this bill necessarily, it's likely to get tacked on to the miscellaneous judiciary bill, which is starting in the house this year. But I figure we can just take a walk through. That way, we'll have it in our minds once we either get to the miscellaneous bill or we just want to pass this. So, Eric, if you'd like to take it away in some terms. Sure.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Will do. Thank you, Senator Hashim. Good morning, everybody. Eric Fitzmatterick with the Office of Elected Legislative Counsel here to do a walk through with the Committee of Senate Bill No. 186, an act relating to the jurisdiction of the Criminal Division over plea agreements and proceedings related to juvenile offenders as Senator Hashim was mentioning. This has to do with plea agreements in the way cases sometimes move back and forth between the Criminal Division and the Juvenile Division. Just a quick minute or two of background, which I think will help everybody understand what the intent of the proposal is. I'm sure you recall from the years dealing with this issue in this committee that whether an offense against a young person starts in the family division or the criminal division depends on two things: how old the young person is and what offense it is. Turning to the what offense it is question first, remember that brings up the question of formerly Big 12, now Big 14. That's this concept that when the young person commits an offense that falls in that list, now it's two lists, not speaking so we hypothetically, here is the list. If the young person commits one of the offenses on this list, now refers to us to the 14, then that means the case starts in criminal. So these are a list of the more as Senator Hashim was saying, some of them, there are felonies. And that's not all felonies on the books, but these are felonies. And you'll see there's on the first side of the piece of paper that you're looking at, and if you turn it over, there's three more. And that's thank you. And the that's your total of 14, your big 14 events to start the coalition. And I think you bet. You don't need to surprise anyone with a pop audience, but does anyone remember why there's 11 offenses on one side and three offenses on the other? What's the one distinguishing factor between those? The 11 inventory. One that the ages. Ah, exactly. It's 80. So for the person, 11 on one side, it's a young person aged 14 and up who commits that offense, starts some. On the backside, those three, remember, aggravated stalking, drug trafficking, Using a firearm. Using a firearm. Yes. Exactly. Well, committing felony. Committing felony. Exactly. And those were added two years ago. And sort of you may recall that the legislative compromise, the position of the Senate at that time was to expand the Big 12. The House did not want to expand the Big 12. So the compromise position that was reached was to add three offenses essentially to big 12, but they don't start at 14, age 14. Like, on page one, it's a smaller group of people because it starts at age 60. So side one, any person 14 years of age or older commits one of those offenses on the side, you'll start to be privileged. But someone aged 16 years and older who commits one to three on the second side would start to be privileged. So that's your background. Now, that's where these offenses start. So let's say, for example, let's just to pick one randomly. Number let's say on page the first side, number four aggravated assault. So where does that case start against a person 14, 15, 16, and up? Starts in a criminal division. Right? But let's say, Senator Hashim is alluding to this, that there's an agreement among the parties that the person is actually gonna plead to simple assault. Simple assault is not one of these offenses that starts in the criminal division. If they're going to start over and the person has to plead to a new offense, that's got to move back down to the family division because that's not in the jurisdiction of the criminal division for a child that age. Everybody see that in reality? That's what's led for the bill. This, the bill permits. And again, a core point here, permits, not required. This is something that the young person can elect to do. Obviously, it can be with the advice of counsel. But the young person can choose if they're, again, just using our hypothetical, but why generally, persons in the criminal division, they've been charged with aggravated assault, they are choosing to plead guilty to simple assault, they can choose to have that stay in the criminal division and have the plea agreement resolved there, rather than have it transferred back down to the family division, which deals more time, more expense. But again, it may be reason that the young person would rather do that. Maybe they'd rather have their offense being a juvenile evader because of criminal record, because the other things that are benefits associated with a family division of juvenile being. That's fine.

[Sen. Nader Hashim (Chair)]: They can still choose to do

[Sen. Robert 'Bob' Norris (Vice Chair)]: that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: But in those cases where everyone's on board and they decide they want to play in the criminal division, just permits that. Adds in a nutshell.

[Sen. Robert 'Bob' Norris (Vice Chair)]: Yes. When you say they, at age 14, and

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

[Sen. Robert 'Bob' Norris (Vice Chair)]: Yep. When you're referring to they may wanna take that. Who are actually referring to? 14 year old or mom, dad? Who who's making that decision? 14 year make that decision? With their attorney. With their attorney. Yeah.

[Sen. Nader Hashim (Chair)]: Any parental Well, they would have

[Eric Fitzpatrick (Office of Legislative Counsel)]: a guardian headline. But maybe somebody else involved in that discussion. Exactly.

[Sen. Philip Baruth (Member)]: But they have, as the defendant, they

[Sen. Robert 'Bob' Norris (Vice Chair)]: have the ultimate Files their parent can't overrule.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I have an interesting question. I I think that it is up to the child and their attorney with the advice of of but I if I'm misspeaking on that, maybe you wanna check with the juvenile offender or someone just

[Sen. Robert 'Bob' Norris (Vice Chair)]: to confirm that that's the right consent of the sentence.

[Sen. Tanya Vyhovsky (Member)]: These are instances where children have been charged as adults, yes? Exactly. So if we're charging children as adults and assuming they have the capacity to act as adults, wouldn't we then give them all the rights of an adult, thus able to make their own legal decisions? I think

[Eric Fitzpatrick (Office of Legislative Counsel)]: that, again, you're in the adult sort of policy column view in one respect, but in the, maybe the current structure of the statutory scheme is that they are still minor in the adult critical condition. But I think that it's true that the ultimate decision is theirs. And with consultation of the parties that we mentioned.

[Sen. Tanya Vyhovsky (Member)]: Do they happen to be provided a lawyer?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I believe the answer to that is yes. So? Yeah.

[Sen. Robert 'Bob' Norris (Vice Chair)]: Any questions?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Thoughts? Go ahead. Just a sort of a technical piece, so just in case he ever ever comes out, got angry. Notice this, but someone might notice, hey. Aren't the isn't the exact same thing written on here twice? Answer to that is yes. The same provisions do appear twice. Sections one, two, and three are, sorry, Sections one, two, are down for the Sections four, Section four And and the reason for that is that, No. It's actually it's the the the laying effective date of in in sense, it's correct. Alright. Alright. Thank you. Thank you. Yes. Actually, you're right. This has to do with age because the age, which is the raise the age, doesn't go into effect until 07/01/2027. Remember, that's the agreement you guys reached last year. So, because we have another set of laws out there that have a delayed effective date of 07/01/2027, you have to make the amendment in both places. If you want it otherwise, it'd get all messed up when 2027 rolls around. You have something go into effect. If you had made the change to that too, let's say you didn't make it to this, then you'd have two different laws on the books.

[Sen. Robert 'Bob' Norris (Vice Chair)]: Jeremy Nuckett. Past history of having an asterisk about whether it will go into offense. Of course.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. That's a it's plain and safe from the drafting perspective.

[Sen. Robert 'Bob' Norris (Vice Chair)]: Yeah. Follow-up question on this. So at the age of 14, it's a fact that they do plead to become a felony death with misdemeanor. Right. At some point in time, is that off their record? That misdemeanor?

[Eric Fitzpatrick (Office of Legislative Counsel)]: That has to do with the ceiling, if that's kind of what you're asking about. It's it's the ceiling statute may provide for that depending on the nature of the events. I I'm not the attorney who covers ceiling, so I'm not positive if it requires a motion or is it an automatic process. I tend to think that it requires a motion to get skilled. So that is an option at a certain point in time, but that is one of the calculations that a person would have to make as to whether to go in the criminal division or the family division. It's automatically simple once you reach age 18, currently, potentially 19, twenty twenty seven. Whereas in the criminal division, it's not automatic. He could be done promotion, but that's a benefit of a family division juvenile case. He chose to go in that group.

[Sen. Nader Hashim (Chair)]: Anything else? That's great. Yes. Thank you, Eric. Yeah. Sure. You can switch gears to one that I think is a bit more straightforward, which is s two zero three. Right. And this has to do with essentially a very technical change regarding when a when when you can consider that somebody to be charged with a number two, if the first is within twenty years, but there are some issues with when that start date with when the with when the date starts for well, I'm not doing the job, so I'm my own bill here. So it's not the limitations for when you can charge somebody with DUI number two.

[Sen. Robert 'Bob' Norris (Vice Chair)]: And Eric, if you just want to

[Sen. Nader Hashim (Chair)]: explain it, that would just be

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think you've put the issue on the table with those center of human. That's exactly what it deals with. It's subsequent offenses for DUI. It's the nature of the bill, it really is dealing with back up for just a second. The penalties for DUI increase for subsequent offenses. Right? So if you look at just to see if I'm at page two. Hope everybody has the same version. If look at page two, line two, for example, do you see a $750 two years? Is that on line two? Yep. Alright. So that's penalty for a first offense. Fine, $750, prison for not more than two years. So it's a two year misdemeanor offense, number one. Salmon offense starts in subsection. So you look down at line seven, bumps up, goes from $71,500, still a two year misdemeanor, but the fine is higher. And you'll see lines eight to 12, it also entails some mandatory community service for incarcerated attacks. That's how the penalties bump up for a second offense there. Third offense, line 13, you see there, well then you bump it up to a felony. Look at line sixteen and seventeen, Comes $2,500, the prison not more than five years. Then you're talking a five year felony for a third offense. Lastly, on page four, second offense sorry, fourth or subsequent offense and sorry, it's gonna be it's pretty good. You see it on line 10. If it's a forward or subsequent offense, it becomes $5,000 ten year belt. So you see this stepped up gradation system here. However, the key here to one of these prior offenses, it's it's not a prior offense no matter when it occurred. It has to be. You look at the language, you try to look at the existing imagine the strike that wasn't there. Let's say on lines four to six on page two. It's a person convicted of violating DUI, let's say, Section twelve oh one, who has been convicted of another violation of that section, let's imagine for a second what the current language is, within the last twenty years. So you're prior. It's not, let's say you're prior to you had a DUI twenty five years ago. That wouldn't count as a first offense. It has to have been within the last twenty years. So in a way, almost allows for an automatic cleaning of your record of prior offenses if you've gone twenty years without getting it up. That makes sense, sort of the way that it's supposed to work. The issue that has come up, as Senator Hashim has alluded to is, all right, so that's the case. That's when your first offense was twenty years ago. When does that subsequent offense start

[Sen. Tanya Vyhovsky (Member)]: to count?

[Eric Fitzpatrick (Office of Legislative Counsel)]: In other words, when do you say, all right, it's from this moment that I'm going to count back twenty years. And right now, the way it's written, see it's line four. It's the same for each offense. We're going to use the second offense as an example. Line four, page two, a person convicted of violating Section twelve oh one, who has been convicted of another violation within the last twenty years. So you start counting back, at least arguably, under that existing language, that your conviction today. Right? A person convicted of violating who has been convicted of another violation within the past twenty years. So you start, let's say, hey, I got convicted today, January. Right? Or today? Trying to give myself a better day there, really get my prior conviction off the record. Yeah. Right. So you start on January, you count back twenty years. And if you have that prior during that period of time, then it counts. But if it was more than that twenty years, that doesn't count. You see, though, what could happen is that the moment when you committed the DUI offense out on the road, you got rap tested or when you got arraigned or something like that, there could be a pretty good gap between that time and my conviction now. And that might add up to more than twenty years. So the proposal is to say, rather than looking back from the moment of the current conviction, he looked back from Violation. Exactly. Yeah. That's exactly. Right. Start counting back from violation.

[Sen. Nader Hashim (Chair)]: You're basically just, you just want to take out the time of the trial, right? You don't want to take that time of the trial as added on, right?

[Eric Fitzpatrick (Office of Legislative Counsel)]: And any pre traversing, because that could go on for a long time. Right. Okay. Yeah.

[Sen. Tanya Vyhovsky (Member)]: I know. Essentially, this makes sense. So it goes from the date that you did the thing, not the date that you were held accounting for the thing.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Exactly. Yeah. Exactly. And especially those backlog, which

[Sen. Robert 'Bob' Norris (Vice Chair)]: could these days add five years.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I see. You could go on even though things could proceed even longer. Yeah. I a think great change given to me. I just

[Sen. Robert 'Bob' Norris (Vice Chair)]: know the date of the life's body ratio.

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

[Sen. Robert 'Bob' Norris (Vice Chair)]: Right. Because DUIs take six months to learn. Right. What happened. So you can come in at nineteen years to six months, and you can see that twenty years with this with the case being dragged out that long, all a sudden, that twenty years gone. Even if a date of violation in itself, nineteen years to six months, that's the date you violated the section. Correct?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Mhmm. And I think that's the fact pattern has happened, that's kind of where this stuff's coming from, if I understand correctly.

[Sen. Nader Hashim (Chair)]: This is refreshing my memory of my conversation with the state's attorney for Windham County. So very helpful. Thank you. Yeah. Any other questions or comments?

[Sen. Robert 'Bob' Norris (Vice Chair)]: That's straightforward.

[Sen. Nader Hashim (Chair)]: Eric, did you have anything else?

[Eric Fitzpatrick (Office of Legislative Counsel)]: No. I think the only thing that if you hear from Whit sometime, it would be an interesting question is is maybe if you do use that date of the violation, you know, is that the right date to use? Sometimes we're sure to use, you know, the date that the person was arraigned maybe, or the date that the information was filed, or is it better to use that date of the actual, The only reason that that occurred to me was because what what if the charge had dropped or something? But maybe maybe still you said better question for your witnesses. See what what's the exact date to use? '7 2003.

[Sen. Tanya Vyhovsky (Member)]: If the charge had dropped, why would it still be

[Eric Fitzpatrick (Office of Legislative Counsel)]: on your record at all? Exactly. Yeah. Guess that's true. That's right. Because even if even if they had been charged as a second offense, if the charge is dropped, it wouldn't be would be booed, so to speak.

[Sen. Robert 'Bob' Norris (Vice Chair)]: Right. Draft or not convicted, six, seven, most death. Doesn't matter. The date of the violation, they're guilty of Yeah. Violation of offense. Right. Right. Yep.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, then That's incorrect. It's drafted very well.

[Sen. Nader Hashim (Chair)]: Well, I'll I wanna make sure I wanna what what you just said, I wanna make sure just confirm that just in the event that somehow, you know, somebody who is isn't convicted, yeah, still hasn't on the record. I I don't want it to end up being used against the twenty years that is dismissed. Just I want to confirm that and that should be pretty straightforward. Alright. Anything else? Sarah Mattos, do you wanna I'll get the other bills you want. I'll skip on. We got time. We got time. Alright. We can