Friday, June 03, 2011

DUI Appeal - Trial Taxes and LIDAR in Vermont

State of Vermont v. de Macedo Soares, --- A.3d ----, 2011 WL 2091122 (Vt.), 2011 VT 56 is not a DUI - it is a speeding LIDAR case. However, the challenges raised may help DUI/DWI attorneys. Here, the defense challenged the legality of a system where those who went to trial were required to pay more than those who pleaded guilty. Defendant first argued that the traffic citation was unconstitutional because: (1) the penalty range applies only when a defendant chooses to maintain a constitutionally protected right to challenge the citation; (2) the $50 in court costs is assessed only if a defendant is found guilty following a hearing; (3) the waiver amount is an improper incentive to settle that chills a defendant's right to challenge a citation; (4) the solicitation of a guilty plea violates the principle of a presumption of innocence; and (5) the process for issuing a citation does not assure a knowing and intelligent waiver of constitutional rights.

The Vermont court acknowledged that the arguments had merit, but ultimately declined to find in the defendant's favor, stating as follows:

"Defendant was cited for a civil traffic violation, not a criminal offense; therefore, the principal cases he relies on to support his constitutional arguments— United States v. Jackson, 390 U.S. 570 (1968) and Veilleux v. Springer, 131 Vt. 33, 300 A.2d 620 (1973)—are inapposite. In Jackson, the Supreme Court struck down the death penalty clause of the Federal Kidnapping Act, which allowed the death penalty to be imposed only on those defendants who were found guilty after pleading not guilty and requesting a jury trial. 390 U.S. at 585. The Court concluded that applying the death penalty only to defendants who assert their right to contest their guilt before a jury unconstitutionally chilled defendants' right to plead not guilty and to demand a jury trial. Id. at 581. In Veilleux, we applied the Jackson rationale to strike down a statute that provided for a six-month driver's license suspension only for defendants who pled not guilty after being charged with driving while intoxicated. 131 Vt. at 38–39, 300 A.2d at 624. We emphasized that the provision could not pass constitutional muster because the license suspension “falls only upon those who exercise the fundamental right to plead not guilty to a criminal charge upon which the constitutional rights guaranteed to a defendant in criminal proceeding are contingent.” Id. at 40, 300 A.2d at 625."

Insofar as the LIDAR Frye issue (which was also raised) was concerned, the court also found againt the defendant:

"Before the traffic bureau, defendant moved to dismiss all evidence concerning use of laser technology for “lack of foundation” because “there is no judicial notice of laser.” In making this argument, defendant cited an Illinois appellate court case rejecting a trial court's judicial notice of an evidentiary hearing held in an unrelated trial court case in which the court found the use of a laser device to be generally accepted. See People v. Canulli, 792 N.E.2d 438, 444–45 (Ill.App.Ct.2003). On appeal, in a one-sentence argument, defendant asserts that the court erred in admitting the LIDAR results because radar and LIDAR are not the same, no Vermont authorities confirm the reliability or admissibility of LIDAR technology, and the district court did not give “judicial notice” of the reliability of the technology. We find no merit to this argument. Defendant has not identified any evidence suggesting that the LIDAR device incorporates a novel technology or is significantly different from or less accurate than other speed-detection devices. Indeed, several jurisdictions, including Illinois, have held that the reliability of this technology has been sufficiently demonstrated to allow its introduction into evidence without first holding an underlying evidentiary hearing on its reliability. See, e.g., State v. Williamson, 166 P.3d 387, 389–90 (Idaho Ct.App.2007) (citing other jurisdictions that have accepted general reliability of laser device in support of holding “that laser speed detection devices are generally reliable and their results may be admitted into evidence in Idaho courts” without either taking specific judicial notice or requiring scientific evidence of laser's reliability); People v. Mann, 922 N.E.2d 533, 537–38 (Ill.App.Ct.2010) (concluding that decisions from other jurisdictions “are ample authority that the use of LIDAR to measure the speed of moving vehicles is based on generally accepted scientific principles”). Defendant's reliance upon Canulli is unavailing insofar as the appellate court in that case reversed the trial court because it had relied upon an inadequately litigated, nonbinding decision in another trial court case involving a different type of laser technology from the technology being challenged in Canulli. See Mann, 922 N.E.2d at 535–36; Canulli, 792 N.E.2d at 444–45. Accordingly, the hearing officer did not abuse his discretion in admitting results from the use of the LIDAR laser device without first holding an evidentiary hearing on the device's reliability.

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