No. 146. an Act Relating to Mandatory Blood Tests for Persons Involved in Fatal Or Serious

NO. 146Page 1

NO. 146. AN ACT RELATING TO MANDATORY BLOOD TESTS FOR PERSONS INVOLVED IN FATAL OR SERIOUS ACCIDENTS.

(S.193)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 23 V.S.A. § 1201(f) is amended to read:

§ 1201. OPERATING VEHICLE UNDER THE INFLUENCE OF

INTOXICATING LIQUOR OR OTHER SUBSTANCE; CRIMINAL

REFUSAL

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(f) For purposes of this section if the state has established a prima facie case with respect to the element of operationand section 1205 of this title, the defendant may assert as an affirmative defense, to be proven by clear and convincing evidence, that the person was not operating, attempting to operate, or in actual physical control of the vehicle because the person:

(1) had no intention of operatingplacing the vehicle in motion; and

(2) had not in fact operated the vehicle in violation of subsection (a) of this sectionplaced the vehicle in motion while under the influence.

Sec. 2. 23 V.S.A. § 1202 is amended to read:

§ 1202. CONSENT TO TAKING OF TESTS TO DETERMINE BLOOD

ALCOHOL CONTENT

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(b) If the person refuses to submit to an evidentiary test it shall not be given, except as provided in subsection (f) of this section, but the refusal may be introduced as evidence in a criminal proceeding.

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(d) At the time a test is requested, the person shall be informed of the following statutory information:

(1) Vermont law authorizes a law enforcement officer to request a test to determine whether the person is under the influence of alcohol or other drug.

(2) If the officer’s request is reasonable and testing is refused, the person’s license or privilege to operate will be suspended for at least six months.

(3) If a test is taken and the results indicate that the person is under the influence of alcohol or other drug, the person will be subject to criminal charges and the person’s license or privilege to operate will be suspended for at least 90 days.

(4) A person who is requested by a law enforcement officer to submit to an evidentiary test or tests has the limited right to consult an attorney before deciding whether or not to submit to such a test or tests. The person must decide whether or not to submit to the evidentiary test or tests within a reasonable time and no later than 30 minutes from the time of the initial attempt to contact the attorney regardless of whether a consultation took place. The person also has the right to have additional tests made by someone of the person’s own choosing at the person’s own expense. The person shall also be informed of the location of one or more facilities available for drawing blood.

(5) A person who is requested by a law enforcement officer to submit to an evidentiary test administered with an infrared breath-testing instrument may elect to have a second infrared test administered immediately after receiving the results of the first test.

(6) If the person refuses to take an evidentiary test, the refusal may be offered into evidence against the person at trial and, whether or not a search warrant is sought. The person may be charged with the crime of criminal refusal if the person:

(A) has previously been convicted of a violation of section 1201 of this title or is involved in an accident or collision resulting in serious bodily injury or death to another, the person may be charged with the crime of criminal refusal; or

(B) is involved in an accident or collision resulting in serious bodily injury or death to another, in which case the court may issue a search warrant and order the person to submit to a blood test, the results of which may be offered into evidence against the person at trial.

Sec. 3. 23 V.S.A. § 1205 is amended to read:

§ 1205. CIVIL SUSPENSION; SUMMARY PROCEDURE

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(e) Effective date of suspension.

(1) First offense. Unless a hearing is requested, a suspension under this section of the license of a person who the officer has reasonable grounds to believe violated section 1201 of this title a first time becomes effective on the eleventh day after the person receives notice or is deemed to have received notice under subsection (c) of this section. If a hearing is requested, a suspension shall not become effective unless the court orders a suspension after hearing as provided in this section.

(2) Second or subsequent offense. A suspension of a person’s license under this section of the license of a person who has previously been convicted of a violation of section 1201 of this title and who the officer has reasonable grounds to believe has violated section 1201 of this title shall become effective on the eleventh day after the person receives notice or is deemed to have received notice under subsection (c) of this section if:

(A) the officer has reasonable grounds to believe the person has violated section 1201 of this title; and

(B) after July 1, 1991, the person has:

(i) had his or her operator’s license suspended pursuant to this section; or

(ii) been convicted of a violation of section 1201 of this title.

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(j) Venue and conduct of hearings. Venue for proceedings under this section shall be in the territorial unit of the district court where the offense is alleged to have occurred. Hearings under this section shall be summary proceedings conducted by the district court without a jury and shall be subject to the District Court Civil Rules only as consistent with this section. The state has the burden of proof by a preponderance of the evidence. Affidavits of law enforcement officers and, chemists of either party, or expert witnesses of either party shall be admissible evidence which may be rebutted by witnesses called by either party. The affidavits shall be delivered to the other party at least five days prior to the hearing.

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Sec. 4. 23 V.S.A. § 1213c(n) is amended to read:

§ 1213c. IMMOBILIZATION AND FORFEITURE PROCEEDINGS

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(n)(1) Selling or encumbering prohibited. AfterExcept as provided in subdivision (2) of this subsection, after a person is charged withdetained, arrested, lodged or released upon citation for a second or subsequent violation of section 1201 of this title, no person shall sell, transfer or encumber the title to a vehicle that the person knows may be subject to immobilization under section 1213a of this title or forfeiture under section 1213b of this title, unless approved by the court in which the charge is filed for good cause shown. A person who violates this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both.

(2) If the state has not commenced a prosecution for a second or subsequent violation of section 1201 of this title within 90 days of the detention, arrest, lodging or release upon citation, the person may sell, transfer or encumber the subject vehicle.

Sec. 5. 33 V.S.A. § 702 is amended to read:

§ 702. DEFINITIONS

For the purposes of this chapter:

(1) "AlcoholSubstance abuser" means anyone who drinks alcohol or consumes other drugs to an extent or with a frequency which impairs or endangers his or her health, or his social and economic functioning, or the health and welfare of others. The class of alcohol abusers includes the smaller class of alcoholics;

(2) "AlcoholSubstance abuse crisis team" means an organization approved by the secretary to provide emergency treatment and transportation services to alcoholics and alcoholsubstance abusers pursuant to the provisions of this chapter;.

(3) "Alcoholic" means a person suffering from the condition of alcoholism;.

(4) "Alcoholism" means addiction to alcoholic beveragesthe drug alcohol. It is characterized by:

(A) chronic absence of control by the drinkerdrug user over the frequency or the volume of his or her alcohol intake; and

(B) inability of the drinkerdrug user to consistently moderate his or her drinking practices in spite of the onset of a variety of consequences deleterious to his or her health or his socio-economic functioning;.

(5) "Approved alcoholsubstance abuse treatment program" means an alcohola treatment program which is approved by the secretary as qualified to provide treatment for alcoholism and alcoholsubstance abuse;.

(6) "Client" means a person who is provided treatment services by an approved alcoholsubstance abuse treatment program, an alcoholsubstance abuse crisis team, or a designated alcoholsubstance abuse counselor;.

(7) "Designated alcoholsubstance abuse counselor" means a person approved by the secretary to evaluate and treat alcoholics and alcoholsubstance abusers, pursuant to the provisions of this chapter;.

(8) "Detoxification" means the planned withdrawal of an individual from a state of acute or chronic alcohol intoxication, under qualified supervision and with or without the use of medication. Detoxification is monitoring and management of the physical and psychological effects of withdrawal, for the purpose of assuring safe and rapid return of the individual to normal bodily and mental functioning;.

(9) "Incapacitated" means that a person, as a result of his or her use of alcohol or other drugs, is in a state of intoxication, or mental confusion resulting from withdrawal, such that the person:

(A) he appears to need medical care or supervision by approved alcoholsubstance abuse treatment personnel, as defined in this section, to assure his or her safety; or

(B) he appears to present a direct active or passive threat to the safety of others;.

(10) "Intoxicated" means a condition in which the mental or physical functioning of an individual is substantially impaired as a result of the presence of alcohol or other drugs in his or her system;.

(11) "Law enforcement officer" means a law enforcement officer certified by the Vermont criminal justice training council as provided in sections 2355-2358 of Title 20, or appointed by the commissioner of public safety as provided in section 1911 of Title 20;.

(12) "Licensed hospital" means a hospital licensed under chapter 43 of Title 18;.

(13) "Protective custody" means a civil status in which an incapacitated person is detained by a law enforcement officer for the purposes of:

(A) assuring the safety of the individual or the public or both; and

(B) assisting the individual to return to a functional condition;.

(14) "Secretary" means the secretary of the agency of human services or histhe secretary’s designee; and.

(15) "Treatment" means the broad range of medical, detoxification, residential, outpatient, aftercare and follow-up services which are needed by alcoholics and alcoholsubstance abusers, and may include a variety of other medical, social, vocational and educational services relevant to the rehabilitation of these persons.

Sec. 6. 33 V.S.A. § 708 is amended to read:

§ 708. TREATMENT AND SERVICES

(a) When a law enforcement officer encounters a person who, in the judgment of the officer, is intoxicated as defined in section 702 of this title, the officer may assist him or her, if he or she consents, to his or her home, an approved alcoholsubstance abuse treatment program, or some other mutually agreeable location.

(b) When a law enforcement officer encounters a person who, in the judgment of the officer, is incapacitated as defined in section 702 of this title, the person shall be taken into protective custody by the officer. The officer shall transport the incapacitated person directly to an approved alcoholsubstance abuse treatment program with detoxification capabilities or to the emergency room of a licensed general hospital for treatment, except that if analcohola substance abuse crisis team or a designated alcoholsubstance abuse counselor exists in the vicinity and is available, the person may be released to the team or counselor at any location mutually agreeable between the officer and the treator. The period of protective custody shall end when the person is released to an alcohola substance abuse crisis team, a designated alcoholsubstance abuse counselor, a clinical staff person of an approved alcoholsubstance abuse treatment program with detoxification capabilities, or a professional medical staff person at a licensed general hospital emergency room. The person may be released to his or her own devices if, at any time, the officer judges him or her to be no longer incapacitated. Protective custody shall in no event exceed 24 hours.

(c) If an incapacitated person is taken to an approved alcoholsubstance abuse treatment program with detoxification capabilities and the program is at capacity, the person shall be taken to the nearest licensed general hospital emergency room for treatment.

(d) A person judged by a law enforcement officer to be incapacitated, and who has not been charged with a crime, may be lodged in protective custody in a lockup or community correctional center for up to 24 hours or until judged by the person in charge of the facility to be no longer incapacitated, if and only if:

(1) The person refuses to be transported to an appropriate facility for treatment, or if once there, refuses treatment or leaves the facility before he or she is considered by the responsible staff of that facility to be no longer incapacitated; or

(2) No approved alcoholsubstance abuse treatment program with detoxification capabilities and no staff physician or other medical professional at the nearest licensed general hospital can be found who will accept the person for treatment.

(e) No person shall be lodged in a lockup or community correctional center under subsection (d) of this section without first being evaluated by an alcohola substance abuse crisis team, a designated alcoholsubstance abuse counselor, a clinical staff person of an approved alcoholsubstance abuse treatment program with detoxification capabilities or a professional medical staff person at a licensed general hospital emergency room and found to be indeed incapacitated.

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(j) Law enforcement officers or persons responsible for supervision in a lockup or community correctional center or members of an alcohola substance abuse crisis team or designated alcoholsubstance abuse counselors who act under the authority of this section are acting in the course of their official duty and are not criminally or civilly liable therefor, unless for gross negligence or willful or wanton injury.

Sec. 7. THERAPEUTIC AND MEDICAL USE OF MARIJUANA; STUDY

AND REPORT

(a) The General Assembly finds that state law should make a distinction between the medical and nonmedical use of marijuana.

(b) A committee is established to investigate and assess options for legal protections which would allow seriously ill patients to use medical marijuana without facing criminal prosecution under Vermont law.

(c) The committee shall consist of the following members:

(1) A member of the judiciary, appointed by the administrative judge;

(2) A representative of the attorney general;

(3) A representative of the state’s attorneys selected by the executive board of the State’s Attorneys Association;

(4) A representative of the Office of Defender General;

(5) A representative of the Vermont Chiefs of Police;

(6) Two physicians, selected by the Vermont Medical Society, one of whom shall be a physician specializing in pain management;

(7) A representative of the HIV Public Policy Project;

(8) A patient, selected by the HIV Public Policy Project;

(9) A person living with a serious illness, or the person’s representative, selected by the Vermont Center for Independent Living;

(10) A person experienced in palliative care, selected by the Hospice Palliative Council of Vermont; and

(11) A representative of a seriously ill patient’s family who serves or has served as the patient’s caregiver, selected by the Community of Vermont Elders.

(d) The committee shall have the assistance and cooperation of all agencies and instrumentalities of the state, which shall provide to the committee such information and analysis as the committee determines is necessary for the performance of its duties, subject to applicable laws of privilege and confidentiality. The committee may meet for no more than seven meetings or public hearings, and shall have such powers as are needed to carry out the purposes of this section.

(e) At its first meeting, the committee shall choose a chair from among its membership. The legislative council and the joint fiscal office shall provide professional and administrative support for the committee. Committee members who are not full-time state employees shall be entitled to per diem and expenses as provided in 32 V.S.A. § 1010.

(f)(1) The committee shall report its findings and recommendations to the governor and the general assembly on or before January 15, 2003, whereupon it shall cease to exist. The report shall:

(A) Make findings regarding the value of using marijuana to ameliorate the symptoms associated with severe illnesses and the treatment thereof. In making these findings, the committee may rely upon:

(i) testimony and information provided by patients who have had therapeutic indications and experience with the medical use of marijuana;

(ii) current research, if any is available, regarding the medical or theraputic value of using marijuana to ameliorate the symptoms associated with severe illnesses and their treatment;

(iii) assessments of marijuana use for people with serious illnesses, including the Institute on Medicine investigation of the use of medical marijuana; and

(iv) any other testimony or information the committee believes is relevant and credible.

(B) Summarize the experiences of medical providers, criminal justice systems, medical marijuana program administrators and medical marijuana patients in those other states which have passed legislation permitting the medical use of marijuana, including:

(i) the effects on patient care and on health care professionals;

(ii) methods for qualifying and registering patients and caregivers;

(iii) administration and implementation of the laws by state agencies, law enforcement, and health care providers;

(iv) restrictions against inappropriate use of medical marijuana by unauthorized individuals;

(v) the number and frequency of federal prosecutions for the medical use of marijuana or physician involvement with medical marijuana patients;

(vi) whether permitting the medical use of marijuana has increased the nonmedical use of marijuana or made it more difficult to enforce criminal laws prohibiting nonmedical use of marijuana.

(C) Identify the methods of providing and procuring marijuana for medical uses which create:

(i) the least risk of stigma and danger of prosecution for patients;

(ii) the least risk that marijuana intended for medical uses will be obtained and used for nonmedical purposes;

(iii) the best system of quality control to insure that patients are not harmed by an unsafe product.

(D) Identify the range of daily marijuana use necessary to accomplish an ameliorative result.

(E) Consider whether the use of marijuana for medical purposes should be based upon the patient’s illness or upon the patient’s symptoms.

(F) Summarize the status and implementation of federal law and policy on the possession, procurement and medical use of marijuana, and physician involvement with medical marijuana patients.

(G) Summarize any programs researching the medical use of marijuana currently being conducted in Vermont.

(2) The department of health shall provide the committee with any information it has concerning the subject matter of the report required by this subsection, including any information gathered by the department in the course of adopting the rules required under section 4471 of Title 18.

Approved: June 21, 2002