| 1 | 1 | | BILL AS INTRODUCED H.123 |
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| 5 | 5 | | VT LEG #379986 v.2 |
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| 6 | 6 | | H.123 1 |
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| 7 | 7 | | Introduced by Representative Arsenault of Williston 2 |
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| 8 | 8 | | Referred to Committee on 3 |
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| 9 | 9 | | Date: 4 |
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| 10 | 10 | | Subject: Motor vehicles; operation of vehicles; drunken driving; driving while 5 |
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| 11 | 11 | | ability impaired 6 |
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| 12 | 12 | | Statement of purpose of bill as introduced: This bill proposes to create a new 7 |
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| 13 | 13 | | civil violation for driving while ability impaired. Under this new violation, a 8 |
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| 14 | 14 | | person will commit such an offense when the person’s blood alcohol content is 9 |
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| 15 | 15 | | not less than 0.06 but not exceeding 0.079. In the proposed bill, a person 10 |
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| 16 | 16 | | adjudicated of the civil violation would be subject to a civil penalty of not 11 |
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| 17 | 17 | | more than $500.00 and the same suspension of driving privileges as someone 12 |
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| 18 | 18 | | convicted of driving under the influence, but the person would not have an 13 |
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| 19 | 19 | | entry on the person’s criminal record. 14 |
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| 20 | 20 | | An act relating to driving while ability impaired 15 |
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| 21 | 21 | | It is hereby enacted by the General Assembly of the State of Vermont: 16 |
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| 22 | 22 | | Sec. 1. 23 V.S.A. § 1201 is amended to read: 17 |
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| 23 | 23 | | § 1201. OPERATING VEHICLE UNDER THE INFLUENCE OF 18 |
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| 24 | 24 | | ALCOHOL OR OTHER SUBSTANCE; CRIMINAL REFUSAL; 19 |
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| 25 | 25 | | ENHANCED PENALTY FOR BAC OF 0.16 OR MORE 20 BILL AS INTRODUCED H.123 |
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| 28 | 28 | | |
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| 29 | 29 | | VT LEG #379986 v.2 |
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| 30 | 30 | | (a) Prohibition. A person shall not operate, attempt to operate, or be in 1 |
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| 31 | 31 | | actual physical control of any vehicle on a highway: 2 |
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| 32 | 32 | | (1) when the person’s alcohol concentration is: 3 |
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| 33 | 33 | | (A) 0.08 or more; or 4 |
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| 34 | 34 | | (B) 0.02 or more if the person is operating a school bus as defined in 5 |
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| 35 | 35 | | subdivision 4(34) of this title; or 6 |
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| 36 | 36 | | (C) 0.04 or more if the person is operating a commercial vehicle as 7 |
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| 37 | 37 | | defined in subdivision 4103(4) of this title; or 8 |
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| 38 | 38 | | (2) when the person is under the influence of alcohol; or 9 |
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| 39 | 39 | | (3) when the person is under the influence of any other drug or under the 10 |
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| 40 | 40 | | combined influence of alcohol and any other drug; or 11 |
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| 41 | 41 | | (4) when the person’s ability to operate a motor vehicle is impaired by 12 |
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| 42 | 42 | | the consumption of alcohol. 13 |
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| 43 | 43 | | (b) Previous conviction; criminal refusal. A person who has previously 14 |
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| 44 | 44 | | been convicted of a violation of this section shall not operate, attempt to 15 |
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| 45 | 45 | | operate, or be in actual physical control of any vehicle on a highway and refuse 16 |
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| 46 | 46 | | a law enforcement officer’s reasonable request under the circumstances for an 17 |
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| 47 | 47 | | evidentiary test where the officer had reasonable grounds to believe the person 18 |
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| 48 | 48 | | was in violation of subsection (a) of this section. 19 |
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| 49 | 49 | | (c) Serious bodily injury or death; criminal refusal. A person shall not 20 |
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| 50 | 50 | | operate, attempt to operate, or be in actual physical control of any vehicle on a 21 BILL AS INTRODUCED H.123 |
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| 52 | 52 | | |
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| 53 | 53 | | |
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| 54 | 54 | | VT LEG #379986 v.2 |
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| 55 | 55 | | highway and be involved in a crash or collision resulting in serious bodily 1 |
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| 56 | 56 | | injury or death to another and refuse a law enforcement officer’s reasonable 2 |
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| 57 | 57 | | request under the circumstances for an evidentiary test where the officer has 3 |
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| 58 | 58 | | reasonable grounds to believe the person has any amount of alcohol or drugs in 4 |
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| 59 | 59 | | his or her the person’s system. 5 |
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| 60 | 60 | | (d) Enhanced penalty for BAC of 0.16 or more. 6 |
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| 61 | 61 | | (1) A person who is convicted of a second or subsequent violation of 7 |
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| 62 | 62 | | subsection (a), (b), or (c) of this section when the person’s alcohol 8 |
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| 63 | 63 | | concentration is proven to be 0.16 or more shall not, for three years from the 9 |
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| 64 | 64 | | date of the conviction for which the person’s alcohol concentration is 0.16 or 10 |
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| 65 | 65 | | more, operate, attempt to operate, or be in actual physical control of any 11 |
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| 66 | 66 | | vehicle on a highway when the person’s alcohol concentration is 0.02 or more. 12 |
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| 67 | 67 | | The prohibition imposed by this subsection shall be in addition to any other 13 |
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| 68 | 68 | | penalties imposed by law. 14 |
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| 69 | 69 | | (2) A person shall not operate, attempt to operate, or be in actual 15 |
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| 70 | 70 | | physical control of any vehicle on a highway when the person’s alcohol 16 |
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| 71 | 71 | | concentration is 0.02 or more if the person has previously been convicted of a 17 |
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| 72 | 72 | | second or subsequent violation of subsection (a), (b), or (c) of this section 18 |
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| 73 | 73 | | within the preceding three years and the person’s alcohol concentration for the 19 |
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| 74 | 74 | | second or subsequent violation was proven to be 0.16 or greater. A violation 20 BILL AS INTRODUCED H.123 |
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| 76 | 76 | | |
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| 77 | 77 | | |
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| 78 | 78 | | VT LEG #379986 v.2 |
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| 79 | 79 | | of this subsection shall be considered a third or subsequent violation of this 1 |
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| 80 | 80 | | section and shall be subject to the penalties of subsection 1210(d) of this title. 2 |
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| 81 | 81 | | (e) Limitation on defense. The fact that a person charged with a violation 3 |
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| 82 | 82 | | of this section is or has been entitled to use a drug under the laws of this State 4 |
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| 83 | 83 | | shall not constitute a defense against any charge of violating this section. 5 |
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| 84 | 84 | | (f) Limitation on prosecution. A person may not be convicted of more than 6 |
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| 85 | 85 | | one violation of subsection (a) of this section arising out of the same incident. 7 |
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| 86 | 86 | | (g) Affirmative defense. For purposes of this section and section 1205 of 8 |
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| 87 | 87 | | this title, the defendant may assert as an affirmative defense that the person 9 |
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| 88 | 88 | | was not operating, attempting to operate, or in actual physical control of the 10 |
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| 89 | 89 | | vehicle because the person: 11 |
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| 90 | 90 | | (1) had no intention of placing the vehicle in motion; and 12 |
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| 91 | 91 | | (2) had not placed the vehicle in motion while under the influence or 13 |
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| 92 | 92 | | while ability impaired. 14 |
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| 93 | 93 | | (h) Definitions. 15 |
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| 94 | 94 | | (1) As used in subdivision (a)(3) of this section, “under the influence of 16 |
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| 95 | 95 | | a drug” means that a person’s ability to operate a motor vehicle safely is 17 |
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| 96 | 96 | | diminished or impaired in the slightest degree. This subsection shall not be 18 |
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| 97 | 97 | | construed to affect the meaning of the term “under the influence of alcohol.” 19 |
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| 98 | 98 | | (2) As used in subdivision (a)(4) of this section, “impaired by the 20 |
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| 99 | 99 | | consumption of alcohol” means that a person’s blood alcohol concentration is 21 BILL AS INTRODUCED H.123 |
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| 101 | 101 | | |
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| 102 | 102 | | |
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| 103 | 103 | | VT LEG #379986 v.2 |
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| 104 | 104 | | not less than 0.06 and not more than 0.079. This subsection shall not be 1 |
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| 105 | 105 | | construed to affect the meaning of the term “under the influence of alcohol.” 2 |
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| 106 | 106 | | (i) Evidence; presumptive admissibility. Evidence of the results of a 3 |
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| 107 | 107 | | standardized field sobriety test conducted by a law enforcement officer trained 4 |
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| 108 | 108 | | in Advanced Roadside Impaired Driving Enforcement or a certified Drug 5 |
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| 109 | 109 | | Recognition Expert’s systematic evaluation of observable signs and symptoms 6 |
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| 110 | 110 | | of a person charged with a violation of this section shall be presumptively 7 |
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| 111 | 111 | | admissible at trial to demonstrate whether or not the person was operating 8 |
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| 112 | 112 | | under the influence in violation of this section. 9 |
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| 113 | 113 | | Sec. 2. 23 V.S.A. § 1210 is amended to read: 10 |
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| 114 | 114 | | § 1210. PENALTIES 11 |
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| 115 | 115 | | (a) Screening. Before sentencing a defendant under this section, the court 12 |
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| 116 | 116 | | may order that the defendant submit to an alcohol assessment screening. Such 13 |
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| 117 | 117 | | a screening report may be considered at sentencing in the same manner as a 14 |
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| 118 | 118 | | presentence report. At sentencing, the defendant may present relevant 15 |
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| 119 | 119 | | evidence, including the results of any independent alcohol assessment that was 16 |
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| 120 | 120 | | conducted at the person’s own expense. Evidence regarding any such 17 |
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| 121 | 121 | | screening or an alcohol assessment performed at the expense of the defendant 18 |
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| 122 | 122 | | shall not be admissible for any other purpose without the defendant’s consent. 19 |
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| 123 | 123 | | (b) First offense. 20 BILL AS INTRODUCED H.123 |
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| 125 | 125 | | |
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| 126 | 126 | | |
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| 127 | 127 | | VT LEG #379986 v.2 |
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| 128 | 128 | | (1) A person who violates section 1201 of this title may be fined not 1 |
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| 129 | 129 | | more than $750.00 or imprisoned for not more than two years, or both. 2 |
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| 130 | 130 | | (2) Notwithstanding subdivision (1) of this subsection, a person who 3 |
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| 131 | 131 | | violates subdivision 1201(a)(4) of this title shall be subject to a civil violation 4 |
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| 132 | 132 | | and fined not more than $500.00. 5 |
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| 133 | 133 | | (c) Second offense. A person convicted of violating section 1201 of this 6 |
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| 134 | 134 | | title who has been convicted or adjudicated of another violation of that section 7 |
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| 135 | 135 | | within the last 20 years shall be fined not more than $1,500.00 or imprisoned 8 |
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| 136 | 136 | | not more than two years, or both. At least 200 hours of community service 9 |
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| 137 | 137 | | shall be performed, or 60 consecutive hours of the sentence of imprisonment 10 |
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| 138 | 138 | | shall be served and may not be suspended or deferred or served as a supervised 11 |
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| 139 | 139 | | sentence, except that credit for a sentence of imprisonment may be received for 12 |
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| 140 | 140 | | time served in a residential alcohol facility pursuant to sentence if the program 13 |
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| 141 | 141 | | is successfully completed. 14 |
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| 142 | 142 | | (d) Third offense. A person convicted of violating section 1201 of this title 15 |
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| 143 | 143 | | who has previously been convicted or adjudicated two times of a violation of 16 |
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| 144 | 144 | | that section, including at least one violation within the last 20 years, shall be 17 |
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| 145 | 145 | | fined not more than $2,500.00 or imprisoned not more than five years, or both. 18 |
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| 146 | 146 | | At least 96 consecutive hours of the sentence of imprisonment shall be served 19 |
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| 147 | 147 | | and may not be suspended or deferred or served as a supervised sentence, 20 |
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| 148 | 148 | | except that credit for a sentence of imprisonment may be received for time 21 BILL AS INTRODUCED H.123 |
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| 150 | 150 | | |
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| 151 | 151 | | |
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| 152 | 152 | | VT LEG #379986 v.2 |
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| 153 | 153 | | served in a residential alcohol facility pursuant to sentence if the program is 1 |
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| 154 | 154 | | successfully completed. The court may impose a sentence that does not 2 |
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| 155 | 155 | | include a term of imprisonment or that does not require that the 96 hours of 3 |
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| 156 | 156 | | imprisonment be served consecutively only if the court makes written findings 4 |
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| 157 | 157 | | on the record that such a sentence will serve the interests of justice and public 5 |
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| 158 | 158 | | safety. 6 |
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| 159 | 159 | | (e) Fourth or subsequent offense. 7 |
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| 160 | 160 | | (1) A person convicted of violating section 1201 of this title who has 8 |
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| 161 | 161 | | previously been convicted or adjudicated three or more times of a violation of 9 |
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| 162 | 162 | | that section, including at least one violation within the last 20 years, shall be 10 |
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| 163 | 163 | | fined not more than $5,000.00 or imprisoned not more than 10 years, or both. 11 |
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| 164 | 164 | | At least 192 consecutive hours of the sentence of imprisonment shall be served 12 |
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| 165 | 165 | | and may not be suspended or deferred or served as a supervised sentence, 13 |
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| 166 | 166 | | except that credit for a sentence of imprisonment may be received for time 14 |
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| 167 | 167 | | served in a residential alcohol treatment facility pursuant to sentence if the 15 |
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| 168 | 168 | | program is successfully completed. The court shall not impose a sentence that 16 |
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| 169 | 169 | | does not include a term of imprisonment unless the court makes written 17 |
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| 170 | 170 | | findings on the record that there are compelling reasons why such a sentence 18 |
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| 171 | 171 | | will serve the interests of justice and public safety. 19 BILL AS INTRODUCED H.123 |
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| 174 | 174 | | |
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| 175 | 175 | | VT LEG #379986 v.2 |
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| 176 | 176 | | (2) The Department of Corrections shall provide alcohol and substance 1 |
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| 177 | 177 | | abuse treatment, when appropriate, to any person convicted of a violation of 2 |
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| 178 | 178 | | this subsection. 3 |
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| 179 | 179 | | (f) Death resulting. 4 |
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| 180 | 180 | | (1) If the death of any person results from a violation of section 1201 of 5 |
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| 181 | 181 | | this title, the person convicted of the violation shall be fined not more than 6 |
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| 182 | 182 | | $10,000.00 or imprisoned not less than one year nor more than 15 years, or 7 |
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| 183 | 183 | | both. The provisions of this subsection do not limit or restrict prosecutions for 8 |
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| 184 | 184 | | manslaughter. 9 |
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| 185 | 185 | | (2) If the death of more than one person results from a violation of 10 |
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| 186 | 186 | | section 1201 of this title, the operator may be convicted of a separate violation 11 |
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| 187 | 187 | | of this subdivision for each decedent. 12 |
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| 188 | 188 | | (3)(A) If the death of any person results from a violation of section 1201 13 |
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| 189 | 189 | | of this title and the person convicted of the violation previously has been 14 |
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| 190 | 190 | | convicted two or more times of a violation of that section, a sentence ordered 15 |
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| 191 | 191 | | pursuant to this subsection shall, except as provided in subdivision (B) of this 16 |
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| 192 | 192 | | subdivision (3), include at least a five-year term of imprisonment. The five-17 |
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| 193 | 193 | | year minimum term of imprisonment required by this subdivision (3)(A) shall 18 |
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| 194 | 194 | | be served and may not be suspended, deferred, or served as a supervised 19 |
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| 195 | 195 | | sentence. The defendant shall not be eligible for probation, parole, furlough, or 20 BILL AS INTRODUCED H.123 |
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| 198 | 198 | | |
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| 199 | 199 | | VT LEG #379986 v.2 |
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| 200 | 200 | | any other type of early release until the expiration of the five-year term of 1 |
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| 201 | 201 | | imprisonment. 2 |
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| 202 | 202 | | (B) Notwithstanding subdivision (A) of this subdivision (3), if the 3 |
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| 203 | 203 | | death of any person results from a violation of section 1201 of this title and the 4 |
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| 204 | 204 | | person convicted of the violation previously has been convicted two or more 5 |
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| 205 | 205 | | times of a violation of that section, the court may impose a sentence that does 6 |
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| 206 | 206 | | not include a term of imprisonment or that includes a term of imprisonment of 7 |
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| 207 | 207 | | less than five years if the court makes written findings on the record that such a 8 |
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| 208 | 208 | | sentence will serve the interests of justice and public safety. 9 |
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| 209 | 209 | | (g) Injury resulting. 10 |
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| 210 | 210 | | (1) If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to 11 |
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| 211 | 211 | | any person other than the operator from a violation of section 1201 of this title, 12 |
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| 212 | 212 | | the person convicted of the violation shall be fined not more than $5,000.00 or 13 |
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| 213 | 213 | | imprisoned not more than 15 years, or both. 14 |
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| 214 | 214 | | (2) If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to 15 |
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| 215 | 215 | | more than one person other than the operator from a violation of section 1201 16 |
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| 216 | 216 | | of this title, the operator may be convicted of a separate violation of this 17 |
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| 217 | 217 | | subdivision for each person injured. 18 |
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| 218 | 218 | | (3)(A) If serious bodily injury as defined in 13 V.S.A. § 1021(2) results 19 |
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| 219 | 219 | | to any person other than the operator from a violation of section 1201 of this 20 |
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| 220 | 220 | | title and the person convicted of the violation previously has been convicted 21 BILL AS INTRODUCED H.123 |
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| 223 | 223 | | |
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| 224 | 224 | | VT LEG #379986 v.2 |
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| 225 | 225 | | two or more times of a violation of section 1201, a sentence ordered pursuant 1 |
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| 226 | 226 | | to this subsection shall, except as provided in subdivision (B) of this 2 |
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| 227 | 227 | | subdivision (3), include at least a five-year term of imprisonment. The five-3 |
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| 228 | 228 | | year minimum term of imprisonment required by this subdivision (3)(A) shall 4 |
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| 229 | 229 | | be served and may not be suspended, deferred, or served as a supervised 5 |
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| 230 | 230 | | sentence. The defendant shall not be eligible for probation, parole, furlough, 6 |
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| 231 | 231 | | or any other type of early release until the expiration of the five-year term of 7 |
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| 232 | 232 | | imprisonment. 8 |
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| 233 | 233 | | (B) Notwithstanding subdivision (A) of this subdivision (3), if 9 |
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| 234 | 234 | | serious bodily injury as defined in 13 V.S.A. § 1021(2) results to any person 10 |
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| 235 | 235 | | other than the operator from a violation of section 1201 of this title and the 11 |
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| 236 | 236 | | person convicted of the violation previously has been convicted two or more 12 |
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| 237 | 237 | | times of a violation of section 1201, the court may impose a sentence that does 13 |
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| 238 | 238 | | not include a term of imprisonment or that includes a term of imprisonment of 14 |
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| 239 | 239 | | less than five years if the court makes written findings on the record that such a 15 |
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| 240 | 240 | | sentence will serve the interests of justice and public safety. 16 |
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| 241 | 241 | | (h) Determination of fines. In determining appropriate fines under this 17 |
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| 242 | 242 | | section, the court may take into account the total cost to a defendant of alcohol 18 |
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| 243 | 243 | | screening, participation in the Alcohol and Driving Education Program and 19 |
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| 244 | 244 | | therapy, and the income of the defendant. 20 BILL AS INTRODUCED H.123 |
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| 247 | 247 | | |
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| 248 | 248 | | VT LEG #379986 v.2 |
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| 249 | 249 | | (i) Surcharge; Blood and Breath Alcohol Testing Special Fund. A person 1 |
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| 250 | 250 | | convicted of violating section 1201 of this title shall be assessed a surcharge of 2 |
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| 251 | 251 | | $60.00, which shall be added to any fine imposed by the court. The court shall 3 |
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| 252 | 252 | | collect and transfer such surcharge to the Department of Public Safety for 4 |
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| 253 | 253 | | deposit in the Blood and Breath Alcohol Testing Special Fund established by 5 |
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| 254 | 254 | | section 1220b of this title. 6 |
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| 255 | 255 | | (j) Surcharge; Public Defender Special Fund. A person convicted of 7 |
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| 256 | 256 | | violating section 1201 of this title shall be assessed a surcharge of $50.00, 8 |
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| 257 | 257 | | which shall be added to any fine or surcharge imposed by the court. The court 9 |
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| 258 | 258 | | shall collect and transfer the surcharge assessed under this subsection to the 10 |
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| 259 | 259 | | Office of Defender General for deposit in the Public Defender Special Fund, 11 |
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| 260 | 260 | | specifying the source of the monies being deposited. The collection 12 |
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| 261 | 261 | | procedures described in 13 V.S.A. § 5240 shall be utilized in the collection of 13 |
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| 262 | 262 | | this surcharge. 14 |
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| 263 | 263 | | (k) Surcharge; DUI Enforcement Special Fund. A person convicted of 15 |
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| 264 | 264 | | violating section 1201 of this title shall be assessed a surcharge of $50.00, 16 |
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| 265 | 265 | | which shall be added to any fine or surcharge imposed by the court. The court 17 |
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| 266 | 266 | | shall collect and transfer the surcharge assessed under this subsection to be 18 |
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| 267 | 267 | | credited to the DUI Enforcement Special Fund. The collection procedures 19 |
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| 268 | 268 | | described in 13 V.S.A. § 5240 shall be utilized in the collection of this 20 |
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| 269 | 269 | | surcharge. 21 BILL AS INTRODUCED H.123 |
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| 272 | 272 | | |
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| 273 | 273 | | VT LEG #379986 v.2 |
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| 274 | 274 | | Sec. 3. EFFECTIVE DATE 1 |
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| 275 | 275 | | This act shall take effect on July 1, 2025. 2 |
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