Vermont Legislature SmartTranscripts:

[Sen. Nader Hashim (Chair)]: We are live. Good morning. It is February 25 against senate judiciary. We have Kim McManus here to talk about s two zero three and. Floor is yours.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Thank you. For the record, Kim McManus with the Department of State's Attorneys and Sheriffs. Bill s two zero three is looking to solve a language issue that came up last year out of an entry order in one of our superior courts where the reading of these any subsequent or subsequent offense of a DUI that the enhancement required a conviction of the violation. And reading that way versus the actual violation created two issues. One was potentially an argument that you couldn't charge a second offense without actually having two convictions previous to that next event. That's one issue. The second issue was you likely all recall that there's a twenty year look back when being able to have a sentence enhancement for a second, third, fourth. And one issue was raised out of that ruling was if you have a DUI in 2000, 01/01/2000, and then you have a second offense in 12/31/2019, and that's when the offense occurs, the violation. We believe the legislature wishes for that to be charged as a second offense if the conviction for that offense didn't happen for another two years

[Sen. Nader Hashim (Chair)]: Of the 2019. In the

[Kim McManus (Department of State's Attorneys and Sheriffs)]: 2000 right. That second offense in 2019, let's say it took a year or two to work its way to conviction. You didn't resolve the case till '21. We're outside of that twenty year period. If the question was raised, could that impact the ability to have that as a second offense?

[Sen. Nader Hashim (Chair)]: That would put the 2,000 conviction outside of

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Outside of the twenty year period. So the suggestion was so the the wording currently, and I'll just focus on second offense, and we essentially just replicate the language for third and fourth. The current language is a person convicted of violating, and then it references the driving under the influence statute 12 o one. And the suggestion is a person who violates section 12 o one so that we're focused on the date of the offense when we're looking at the charging and then looking at the ability to have the conviction within that twenty year period.

[Sen. Nader Hashim (Chair)]: So the date of the offense is controlling date for this as long as there's a conviction?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Correct. So it would go from past conviction to new violation as far as that twenty year look back. And then it also would create no confusion about charging a second or third. You don't need the conviction to be able to charge it as a second or third offense if there's been a previous conviction.

[Sen. Nader Hashim (Chair)]: Can you say that last sentence?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: I know. This one so well, I'll use me as an example because I do not like giving senators charges. So I have a DUI conviction from 2010. And then I'm charged with another DUI five years later. We believe the intention of the legislature is that that can be charged as a second offense. I have a previous conviction of a DUI. This is now my second allegation within the period. A very strict reading of the current language, folks can get to a place where they're saying, oh, no. You can't charge that until you have the second conviction, which exactly.

[Sen. Nader Hashim (Chair)]: You can't charge the second offense unless you have a second conviction.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: That's the strict reading of a person convicted of violating the section. Okay. So what so and, again, this is this is not this is a judge provided this analysis, and and it's not widespread analysis, but it was raised. And so we just wanna correct. And, again, we do not believe that was the intention legislature.

[Sen. Nader Hashim (Chair)]: It creates, like, the loop you can't essentially makes it if you read it that way, you can't charge it because if you can't charge it until it's convicted, it's

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Exactly. Or what it would create in reality is that I would really need to be on my third offense to be charged with a second offense. Yeah. Because then I'd have two convictions of violating and then I've offended again. So it would create and again, we do not think that's what the legislature intended. And so with this language, we

[Sen. Nader Hashim (Chair)]: correct both issues. That one that's a bit outside, and again, not how we believe most are interpreting the statute, and then the look back, period. I think that that's makes it more clear.

[Sen. Robert Norris (Vice Chair)]: I just have one quick question. So, Kim, you got your DUI conviction in 02/2005. You're you're charged with another DUI second place. So five years and one week later, you're picked up again and charged now with DUI, offense. If the second offense is acquitted and this individual actually was brought to a facility because the third is a felony, the second was acquitted, where does that leave the officers involved as far as at the time, it appears a little bit they they could maybe. But let's say they were in the second place, they they were acquitted.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: So you still would need to say for that so if you had a third allegation Yeah. Right, so that's the moment of violation. Violation. You would look back on the record. There'd only be if someone was acquitted of that second one, there'd only be one conviction.

[Sen. Robert Norris (Vice Chair)]: No. I'm saying five years and one week later, okay, this this is seven days after the individual was alleged to have been driving on the influence. They're picked up being, let's say, by the same officer. He or she has information that, yeah, they were processed for DUI second. Now this is their DUI third.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: That's and but if the DUI second was it's it's reached disposition, it's been there's been an acquittal or no? It's still pending?

[Sen. Robert Norris (Vice Chair)]: No. It's still seven days later, it's still pending.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Oh, sorry. I I didn't okay. So right. So we have one conviction. Yep. And then you have one charge

[Sen. Robert Norris (Vice Chair)]: for DUI two years. Mhmm. And then seven days later, you pick up again.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: So this is another issue that was raised by our TSRP, and we didn't know whether we wanted to to bring this up now. So that that week later, that officer right now would charge that as another second offense.

[Sen. Nader Hashim (Chair)]: As another second?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Yes. Because, again, there's only a conviction for one previous one.

[Sen. Robert Norris (Vice Chair)]: There's a

[Kim McManus (Department of State's Attorneys and Sheriffs)]: pending charge, and there's an allegation, but there's no resolution to that second offense. So that that is an issue that we come across. Someone could get multiple violations in a row, but the enhancement is connected to a previous conviction. And it is an issue, senator Norris, and it's a question of whether we wanna tackle that issue at this time as well. Because that is an issue out there.

[Sen. Nader Hashim (Chair)]: I don't wanna tackle any more

[Kim McManus (Department of State's Attorneys and Sheriffs)]: issues. No. But it is an issue raised, Adam. But it does get more complicated. Yeah. Because, again, those are allegations until they're disposed of one way or another. Whether you wanna be able to enhance those later, that's a question for you all, but that's a much more complicated conversation.

[Sen. Nader Hashim (Chair)]: So is it safe to say you support this bill as introduced? Or do you have any language?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Nope. Nope. This, I believe, we had very similar language suggested. And so this dissatisfies what we were looking for. And I just had a note from our traffic safety resource prosecutors that the language introducing the bill that's making it very clear what that that you want these offenses to be connected to the violation date within that twenty years If that language is able to be in the I always forget how it works with the what's it called? Five days? No. The when you release the the legislation, you're able to can I'll think of it, and I'll read it to you because I'm The intent? Yes. Legislative intent. Sorry. Yeah. No worries. Yes. Just to make it very clear. Yeah. And again, this is something that most interpret the way we believe you meant to have it. Just bears it off.

[Sen. Nader Hashim (Chair)]: Any any questions? Okay. From malaria on. It was the plea agreements plea agreements for juveniles. And working group to see if they have suggestions. I'm wondering if that's how the committee also feels about the bill or if there are others we should hear from regarding the bill. And if not, then we can well, yeah, any any thoughts on that bill?

[Sen. Robert Norris (Vice Chair)]: Presently, as the bill states, I don't have a problem with it, but I don't have a problem with referring to this special committee, and the committee here seems necessary. So either way, I'm gonna be on it.

[Sen. Nader Hashim (Chair)]: Ready? I think I agree with Bob. Sounds good. Either thing is fine, either. At this point, I'm sort of not heavily compelled in either direction.

[Sen. Tanya Vyhovsky (Member)]: I'm fine sending it to a

[Sen. Nader Hashim (Chair)]: working group if they would have and think I if they do have other suggestions and there's broader things, like that

[Kim McManus (Department of State's Attorneys and Sheriffs)]: makes sense to me,

[Sen. Nader Hashim (Chair)]: I imagine this is not an issue that comes up terribly frequently. I'll say, wow. Yes. So it doesn't feel incredibly pressing that it

[Sen. Tanya Vyhovsky (Member)]: has to be changed. You know what I mean?

[Sen. Nader Hashim (Chair)]: So if Matt or Marshall or whoever raised that in their office feels that that's what we should do, then I'm fine with that.

[Sen. Robert Norris (Vice Chair)]: So I do have a question on that. As many of you are aware, some of us may not be back next year. This report will suggest to be submitted by November or whatever else. So does the bill still go to the floor as is ending the report from this this special group, or does it get hung up all the way? What happens to the bill?

[Sen. Nader Hashim (Chair)]: I think Matt was suggesting an alternate path from the bill. Okay. In other words, the bill would die on the wall, but that working room would take it and then bring it back to us next year. Because we can't bind a future legislature. So we couldn't say, you have to do this. I also know there was some conversation about making an amendment to make the charge related to that nexus of conduct. Do I remember that as well? Can I Yes? I think I asked Eric to

[Sen. Robert Norris (Vice Chair)]: it within the confines of what the actual charge was.

[Sen. Nader Hashim (Chair)]: Keeping it within the confines of the same case. So, like, the nexus of conduct, in other words, let's say you trespassed to commit an aggravated assault. That trespass is still in that nexus of conduct. But let's say you got that docket, but then a month later, you have a completely separate docket. And they wanna do a universal plea deal that says, okay. The second docket and the first one, we'll combine it into one plea agreement. And that could be where things get hung up if they're trying to amend things to the other docket that may that aren't related at all to the first one, if that makes sense. So we're back at ten? Well, we're gonna see if Eric can come down. We can take a ten minute break. We can go off.