BILL AS INTRODUCED H.123
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VT LEG #379986 v.2
H.123 1
Introduced by Representative Arsenault of Williston 2
Referred to Committee on 3
Date: 4
Subject: Motor vehicles; operation of vehicles; drunken driving; driving while 5
ability impaired 6
Statement of purpose of bill as introduced: This bill proposes to create a new 7
civil violation for driving while ability impaired. Under this new violation, a 8
person will commit such an offense when the person’s blood alcohol content is 9
not less than 0.06 but not exceeding 0.079. In the proposed bill, a person 10
adjudicated of the civil violation would be subject to a civil penalty of not 11
more than $500.00 and the same suspension of driving privileges as someone 12
convicted of driving under the influence, but the person would not have an 13
entry on the person’s criminal record. 14
An act relating to driving while ability impaired 15
It is hereby enacted by the General Assembly of the State of Vermont: 16
Sec. 1. 23 V.S.A. § 1201 is amended to read: 17
§ 1201. OPERATING VEHICLE UNDER THE INFLUENCE OF 18
ALCOHOL OR OTHER SUBSTANCE; CRIMINAL REFUSAL; 19
ENHANCED PENALTY FOR BAC OF 0.16 OR MORE 20 BILL AS INTRODUCED H.123
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(a) Prohibition. A person shall not operate, attempt to operate, or be in 1
actual physical control of any vehicle on a highway: 2
(1) when the person’s alcohol concentration is: 3
(A) 0.08 or more; or 4
(B) 0.02 or more if the person is operating a school bus as defined in 5
subdivision 4(34) of this title; or 6
(C) 0.04 or more if the person is operating a commercial vehicle as 7
defined in subdivision 4103(4) of this title; or 8
(2) when the person is under the influence of alcohol; or 9
(3) when the person is under the influence of any other drug or under the 10
combined influence of alcohol and any other drug; or 11
(4) when the person’s ability to operate a motor vehicle is impaired by 12
the consumption of alcohol. 13
(b) Previous conviction; criminal refusal. A person who has previously 14
been convicted of a violation of this section shall not operate, attempt to 15
operate, or be in actual physical control of any vehicle on a highway and refuse 16
a law enforcement officer’s reasonable request under the circumstances for an 17
evidentiary test where the officer had reasonable grounds to believe the person 18
was in violation of subsection (a) of this section. 19
(c) Serious bodily injury or death; criminal refusal. A person shall not 20
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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highway and be involved in a crash or collision resulting in serious bodily 1
injury or death to another and refuse a law enforcement officer’s reasonable 2
request under the circumstances for an evidentiary test where the officer has 3
reasonable grounds to believe the person has any amount of alcohol or drugs in 4
his or her the person’s system. 5
(d) Enhanced penalty for BAC of 0.16 or more. 6
(1) A person who is convicted of a second or subsequent violation of 7
subsection (a), (b), or (c) of this section when the person’s alcohol 8
concentration is proven to be 0.16 or more shall not, for three years from the 9
date of the conviction for which the person’s alcohol concentration is 0.16 or 10
more, operate, attempt to operate, or be in actual physical control of any 11
vehicle on a highway when the person’s alcohol concentration is 0.02 or more. 12
The prohibition imposed by this subsection shall be in addition to any other 13
penalties imposed by law. 14
(2) A person shall not operate, attempt to operate, or be in actual 15
physical control of any vehicle on a highway when the person’s alcohol 16
concentration is 0.02 or more if the person has previously been convicted of a 17
second or subsequent violation of subsection (a), (b), or (c) of this section 18
within the preceding three years and the person’s alcohol concentration for the 19
second or subsequent violation was proven to be 0.16 or greater. A violation 20 BILL AS INTRODUCED H.123
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of this subsection shall be considered a third or subsequent violation of this 1
section and shall be subject to the penalties of subsection 1210(d) of this title. 2
(e) Limitation on defense. The fact that a person charged with a violation 3
of this section is or has been entitled to use a drug under the laws of this State 4
shall not constitute a defense against any charge of violating this section. 5
(f) Limitation on prosecution. A person may not be convicted of more than 6
one violation of subsection (a) of this section arising out of the same incident. 7
(g) Affirmative defense. For purposes of this section and section 1205 of 8
this title, the defendant may assert as an affirmative defense that the person 9
was not operating, attempting to operate, or in actual physical control of the 10
vehicle because the person: 11
(1) had no intention of placing the vehicle in motion; and 12
(2) had not placed the vehicle in motion while under the influence or 13
while ability impaired. 14
(h) Definitions. 15
(1) As used in subdivision (a)(3) of this section, “under the influence of 16
a drug” means that a person’s ability to operate a motor vehicle safely is 17
diminished or impaired in the slightest degree. This subsection shall not be 18
construed to affect the meaning of the term “under the influence of alcohol.” 19
(2) As used in subdivision (a)(4) of this section, “impaired by the 20
consumption of alcohol” means that a person’s blood alcohol concentration is 21 BILL AS INTRODUCED H.123
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not less than 0.06 and not more than 0.079. This subsection shall not be 1
construed to affect the meaning of the term “under the influence of alcohol.” 2
(i) Evidence; presumptive admissibility. Evidence of the results of a 3
standardized field sobriety test conducted by a law enforcement officer trained 4
in Advanced Roadside Impaired Driving Enforcement or a certified Drug 5
Recognition Expert’s systematic evaluation of observable signs and symptoms 6
of a person charged with a violation of this section shall be presumptively 7
admissible at trial to demonstrate whether or not the person was operating 8
under the influence in violation of this section. 9
Sec. 2. 23 V.S.A. § 1210 is amended to read: 10
§ 1210. PENALTIES 11
(a) Screening. Before sentencing a defendant under this section, the court 12
may order that the defendant submit to an alcohol assessment screening. Such 13
a screening report may be considered at sentencing in the same manner as a 14
presentence report. At sentencing, the defendant may present relevant 15
evidence, including the results of any independent alcohol assessment that was 16
conducted at the person’s own expense. Evidence regarding any such 17
screening or an alcohol assessment performed at the expense of the defendant 18
shall not be admissible for any other purpose without the defendant’s consent. 19
(b) First offense. 20 BILL AS INTRODUCED H.123
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(1) A person who violates section 1201 of this title may be fined not 1
more than $750.00 or imprisoned for not more than two years, or both. 2
(2) Notwithstanding subdivision (1) of this subsection, a person who 3
violates subdivision 1201(a)(4) of this title shall be subject to a civil violation 4
and fined not more than $500.00. 5
(c) Second offense. A person convicted of violating section 1201 of this 6
title who has been convicted or adjudicated of another violation of that section 7
within the last 20 years shall be fined not more than $1,500.00 or imprisoned 8
not more than two years, or both. At least 200 hours of community service 9
shall be performed, or 60 consecutive hours of the sentence of imprisonment 10
shall be served and may not be suspended or deferred or served as a supervised 11
sentence, except that credit for a sentence of imprisonment may be received for 12
time served in a residential alcohol facility pursuant to sentence if the program 13
is successfully completed. 14
(d) Third offense. A person convicted of violating section 1201 of this title 15
who has previously been convicted or adjudicated two times of a violation of 16
that section, including at least one violation within the last 20 years, shall be 17
fined not more than $2,500.00 or imprisoned not more than five years, or both. 18
At least 96 consecutive hours of the sentence of imprisonment shall be served 19
and may not be suspended or deferred or served as a supervised sentence, 20
except that credit for a sentence of imprisonment may be received for time 21 BILL AS INTRODUCED H.123
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served in a residential alcohol facility pursuant to sentence if the program is 1
successfully completed. The court may impose a sentence that does not 2
include a term of imprisonment or that does not require that the 96 hours of 3
imprisonment be served consecutively only if the court makes written findings 4
on the record that such a sentence will serve the interests of justice and public 5
safety. 6
(e) Fourth or subsequent offense. 7
(1) A person convicted of violating section 1201 of this title who has 8
previously been convicted or adjudicated three or more times of a violation of 9
that section, including at least one violation within the last 20 years, shall be 10
fined not more than $5,000.00 or imprisoned not more than 10 years, or both. 11
At least 192 consecutive hours of the sentence of imprisonment shall be served 12
and may not be suspended or deferred or served as a supervised sentence, 13
except that credit for a sentence of imprisonment may be received for time 14
served in a residential alcohol treatment facility pursuant to sentence if the 15
program is successfully completed. The court shall not impose a sentence that 16
does not include a term of imprisonment unless the court makes written 17
findings on the record that there are compelling reasons why such a sentence 18
will serve the interests of justice and public safety. 19 BILL AS INTRODUCED H.123
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(2) The Department of Corrections shall provide alcohol and substance 1
abuse treatment, when appropriate, to any person convicted of a violation of 2
this subsection. 3
(f) Death resulting. 4
(1) If the death of any person results from a violation of section 1201 of 5
this title, the person convicted of the violation shall be fined not more than 6
$10,000.00 or imprisoned not less than one year nor more than 15 years, or 7
both. The provisions of this subsection do not limit or restrict prosecutions for 8
manslaughter. 9
(2) If the death of more than one person results from a violation of 10
section 1201 of this title, the operator may be convicted of a separate violation 11
of this subdivision for each decedent. 12
(3)(A) If the death of any person results from a violation of section 1201 13
of this title and the person convicted of the violation previously has been 14
convicted two or more times of a violation of that section, a sentence ordered 15
pursuant to this subsection shall, except as provided in subdivision (B) of this 16
subdivision (3), include at least a five-year term of imprisonment. The five-17
year minimum term of imprisonment required by this subdivision (3)(A) shall 18
be served and may not be suspended, deferred, or served as a supervised 19
sentence. The defendant shall not be eligible for probation, parole, furlough, or 20 BILL AS INTRODUCED H.123
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any other type of early release until the expiration of the five-year term of 1
imprisonment. 2
(B) Notwithstanding subdivision (A) of this subdivision (3), if the 3
death of any person results from a violation of section 1201 of this title and the 4
person convicted of the violation previously has been convicted two or more 5
times of a violation of that section, the court may impose a sentence that does 6
not include a term of imprisonment or that includes a term of imprisonment of 7
less than five years if the court makes written findings on the record that such a 8
sentence will serve the interests of justice and public safety. 9
(g) Injury resulting. 10
(1) If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to 11
any person other than the operator from a violation of section 1201 of this title, 12
the person convicted of the violation shall be fined not more than $5,000.00 or 13
imprisoned not more than 15 years, or both. 14
(2) If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to 15
more than one person other than the operator from a violation of section 1201 16
of this title, the operator may be convicted of a separate violation of this 17
subdivision for each person injured. 18
(3)(A) If serious bodily injury as defined in 13 V.S.A. § 1021(2) results 19
to any person other than the operator from a violation of section 1201 of this 20
title and the person convicted of the violation previously has been convicted 21 BILL AS INTRODUCED H.123
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two or more times of a violation of section 1201, a sentence ordered pursuant 1
to this subsection shall, except as provided in subdivision (B) of this 2
subdivision (3), include at least a five-year term of imprisonment. The five-3
year minimum term of imprisonment required by this subdivision (3)(A) shall 4
be served and may not be suspended, deferred, or served as a supervised 5
sentence. The defendant shall not be eligible for probation, parole, furlough, 6
or any other type of early release until the expiration of the five-year term of 7
imprisonment. 8
(B) Notwithstanding subdivision (A) of this subdivision (3), if 9
serious bodily injury as defined in 13 V.S.A. § 1021(2) results to any person 10
other than the operator from a violation of section 1201 of this title and the 11
person convicted of the violation previously has been convicted two or more 12
times of a violation of section 1201, the court may impose a sentence that does 13
not include a term of imprisonment or that includes a term of imprisonment of 14
less than five years if the court makes written findings on the record that such a 15
sentence will serve the interests of justice and public safety. 16
(h) Determination of fines. In determining appropriate fines under this 17
section, the court may take into account the total cost to a defendant of alcohol 18
screening, participation in the Alcohol and Driving Education Program and 19
therapy, and the income of the defendant. 20 BILL AS INTRODUCED H.123
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(i) Surcharge; Blood and Breath Alcohol Testing Special Fund. A person 1
convicted of violating section 1201 of this title shall be assessed a surcharge of 2
$60.00, which shall be added to any fine imposed by the court. The court shall 3
collect and transfer such surcharge to the Department of Public Safety for 4
deposit in the Blood and Breath Alcohol Testing Special Fund established by 5
section 1220b of this title. 6
(j) Surcharge; Public Defender Special Fund. A person convicted of 7
violating section 1201 of this title shall be assessed a surcharge of $50.00, 8
which shall be added to any fine or surcharge imposed by the court. The court 9
shall collect and transfer the surcharge assessed under this subsection to the 10
Office of Defender General for deposit in the Public Defender Special Fund, 11
specifying the source of the monies being deposited. The collection 12
procedures described in 13 V.S.A. § 5240 shall be utilized in the collection of 13
this surcharge. 14
(k) Surcharge; DUI Enforcement Special Fund. A person convicted of 15
violating section 1201 of this title shall be assessed a surcharge of $50.00, 16
which shall be added to any fine or surcharge imposed by the court. The court 17
shall collect and transfer the surcharge assessed under this subsection to be 18
credited to the DUI Enforcement Special Fund. The collection procedures 19
described in 13 V.S.A. § 5240 shall be utilized in the collection of this 20
surcharge. 21 BILL AS INTRODUCED H.123
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Sec. 3. EFFECTIVE DATE 1
This act shall take effect on July 1, 2025. 2