DUI Laws - Vermont Says Boom-Lift is a Vehicle Under Drunk-Driving Laws

In State of Vermont v. Smith, --- A.3d ----, 2011 WL 3198820 (Vt.), 2011 VT 83, the trial court dismissed the charges of DUI and driving while suspended based upon the fact that a boom-lift is not a "motor vehicle". A boom lift is a machine with four wheels and a gas or oil fueled motor. The operator stands in the bucket at the end of the lift arm to engage the motor to travel to the precise position required for work. The maximum speed of movement of the boom lift is approximately five miles per hour. Once the machine is in the correct location, the lift arm operates by battery or hydraulic power. While in the bucket, the operator maneuvers the arm and the machine base using levers, joysticks, toggle switches, and buttons. A boom lift contains several safety measures including one that automatically stops it when a foot pedal is released and another that locks the machine in place when it is imbalanced. The State appealed.

On appeal, the Supreme Court of Vermont found that a boom-lift is in fact a "motor vehicle" based upon the definition of the same under Vermont law. “Motor vehicle” is defined as “all vehicles propelled or drawn by power other than muscular power, except farm tractors, vehicles running only upon stationary rails or tracks, motorized highway building equipment, road making appliances, snowmobiles, or tracked vehicles or electric personal assistive mobility devices.”

Applying a doctrine commonly referred to as "expressio unius est exclusio alterius", the court found that the boom-lift was not excluded from the definition:

"If the Legislature had intended that exceptions comparable to those explicitly mentioned be recognized, it could have drafted the language to make the list of exceptions nonexclusive. Without such an authorization, we have held that “where express exceptions are made, the legal presumption is that the Legislature did not intend to save other cases from the operation of the statute.... [A]n exception in a statute amounts to an affirmation of the application of its provision to all other cases not excepted, and excludes all other exceptions.”

Concluding, the court stated:

"While defendant correctly states that statutes must be construed to avoid irrational results and effect legislative intent, these concerns are not implicated in this case. Nor do we have to analyze the statutory language in comparison with every kind of motorized equipment in order to resolve this case. Key features of a boom lift's design are its ability to transport itself and its operator to the proper location at the building site where the lift arm is needed, and its operation from the bucket. Without this transportation function, the lift would be extremely difficult to use because it could not be easily moved to different places at a work site. That the machine travels at a relatively slow speed and is generally driven only relatively short distances is immaterial. Just as the broken-down car in Tacey was assessed based upon its design rather than its temporary condition, so should the boom lift be assessed by its capability to be used for motorized transport rather than the frequency of such use in comparison to the lift function."

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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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