§ 1205. Civil suspension; summary procedure
(a) Refusal; alcohol concentration at or above legal limits; suspension periods.
(1) Upon affidavit of a law enforcement officer that the officer had reasonable grounds
to believe that the person was operating, attempting to operate, or in actual physical
control of a vehicle in violation of section 1201 of this title and that the person refused to submit to a test, the Commissioner shall suspend the
person’s operating license or nonresident operating privilege or the privilege of
an unlicensed operator to operate a vehicle for a period of six months and until the
person complies with section 1209a of this title. However, during the suspension, an eligible person may operate under the terms of
an ignition interlock RDL or ignition interlock certificate issued pursuant to section 1213 of this title.
(2) Upon affidavit of a law enforcement officer that the officer had reasonable grounds
to believe that the person was operating, attempting to operate, or in actual physical
control of a vehicle in violation of section 1201 of this title and that the person submitted to a test and the test results indicated that the person’s
alcohol concentration was at or above a limit specified in subsection 1201(a) of this title, at the time of operating, attempting to operate, or being in actual physical control,
the Commissioner shall suspend the person’s operating license or nonresident operating
privilege or the privilege of an unlicensed operator to operate a vehicle for a period
of 90 days and until the person complies with section 1209a of this title. However, during the suspension, an eligible person may operate under the terms of
an ignition interlock RDL or ignition interlock certificate issued pursuant to section 1213 of this title.
(3) Upon affidavit of a law enforcement officer that the officer had reasonable grounds
to believe that the person was operating, attempting to operate, or in actual physical
control of a vehicle in violation of subdivision 1201(d)(2) of this title and that the person submitted to a test and the test results indicated that the person’s
alcohol concentration was 0.02 or more at the time of operating, attempting to operate,
or being in actual physical control, the Commissioner shall suspend the person’s operating
license or nonresident operating privilege or the privilege of an unlicensed operator
to operate a vehicle for life. However, during the suspension, an eligible person
may operate under the terms of an ignition interlock RDL or ignition interlock certificate
issued under section 1213 of this title.
(b) Form of officer’s affidavit. A law enforcement officer’s affidavit in support of a suspension under this section
shall be in a standardized form for use throughout the State and shall be sufficient
if it contains the following statements:
(1) The officer is a certified law enforcement officer.
(2) The officer who administered the test was certified to operate the testing equipment.
(3) The officer had reasonable grounds to believe the person was operating, attempting
to operate, or in actual physical control of a vehicle in violation of section 1201 of this title (noting the time and date of operating, attempting to operate, or being in actual
physical control).
(4) The officer informed the person of the person’s rights under subsection 1202(d) of this title.
(5) The officer obtained an evidentiary test (noting the time and date the test was taken)
and the test indicated that the person’s alcohol concentration was at or above a legal
limit specified in subsection 1201(a) or (d) of this title, or the person refused
to submit to an evidentiary test.
(6) The officer complied with the Servicemembers Civil Relief Act, codified at 50 U.S.C.
chapter 50.
(7) The officer confirmed the person’s correct mailing address.
(c) Notice of suspension. On behalf of the Commissioner of Motor Vehicles, a law enforcement officer requesting
or directing the administration of an evidentiary test shall serve notice of intention
to suspend and of suspension on a person who refuses to submit to an evidentiary test
or on a person who submits to a test the results of which indicate that the person’s
alcohol concentration was at or above a legal limit specified in subsection 1201(a)
or (d) of this title, at the time of operating, attempting to operate, or being in
actual physical control of a vehicle in violation of section 1201 of this title. The notice shall be signed by the law enforcement officer requesting the test. A
copy of the notice shall be sent to the Commissioner of Motor Vehicles, and a copy
shall be mailed or given to the defendant within three business days after the date
the officer receives the results of the test. If mailed, the notice is deemed received
three days after mailing to the address provided by the defendant to the law enforcement
officer. A copy of the affidavit of the law enforcement officer shall also be mailed
by first-class mail or given to the defendant and the Commissioner of Motor Vehicles
within seven days after the date of notice.
(d) Form of notice. The notice of intention to suspend and of suspension shall be in a form prescribed
by the Supreme Court. The notice shall include an explanation of rights, a form to
be used to request a hearing, and, if a hearing is requested, the date, time, and
location of the Criminal Division of the Superior Court where the person must appear
for a preliminary hearing. The notice shall also contain, in boldface print, the following:
(1) You have the right to ask for a hearing to contest the suspension of your operator’s
license.
(2) If this is your first violation of section 1201 of this title and if you do not request a hearing, your license will be suspended as provided in
this notice. If this is your second or subsequent violation of section 1201 of this title, your license will be suspended on the 11th day after you receive this notice. It
is a crime to drive while your license is suspended unless you have been issued an
ignition interlock restricted driver’s license or ignition interlock certificate.
(3) If you wish to request a hearing before the Criminal Division of the Superior Court,
you must mail or deliver your request for a hearing within seven days after (date
of notice).
(4) If your request for a hearing is not mailed or delivered within seven days after (date
of notice), you waive your right to a hearing and your license will be suspended as
provided in this notice.
(5) In order to request a hearing, sign the attached form and mail or deliver the form
to the Commissioner of Motor Vehicles at the address shown.
(6) If you are charged with a second or subsequent violation of section 1201 of this title, no person shall sell, transfer, or encumber the title to a vehicle that may be subject
to immobilization or forfeiture, unless approved by the court in which the charge
is filed for good cause shown.
(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 11th 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 shall become effective on the
11th 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) within the last 20 years, 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.
(f) Review by Superior Court. Within seven days following receipt of a notice of intention to suspend and of suspension,
a person may make a request for a hearing before the Superior Court by mailing or
delivering the form provided with the notice. The request shall be mailed or delivered
to the Commissioner of Motor Vehicles, who shall then notify the Criminal Division
of the Superior Court that a hearing has been requested and provide the Criminal Division
and the State’s Attorney with a copy of the notice of intention to suspend and of
suspension and the officer’s affidavit.
(g) Preliminary hearing. The preliminary hearing shall be held within 21 days after the alleged offense. Unless
impracticable or continued for good cause shown, the date of the preliminary hearing
shall be the same as the date of the first appearance in any criminal case resulting
from the same incident for which the person received a citation to appear in court.
The preliminary hearing shall be held in accordance with procedures prescribed by
the Supreme Court.
(h) Final hearing.
(1) If the defendant requests a hearing on the merits, the court shall schedule a final
hearing on the merits to be held within 21 days after the date of the preliminary
hearing. In no event may a final hearing occur more than 42 days after the date of
the alleged offense without the consent of the defendant or for good cause shown.
The final hearing may only be continued by the consent of the defendant or for good
cause shown. The issues at the final hearing shall be limited to the following:
(A) Whether the law enforcement officer had reasonable grounds to believe the person was
operating, attempting to operate, or in actual physical control of a vehicle in violation
of section 1201 of this title.
(B) Whether at the time of the request for the evidentiary test the officer informed the
person of the person’s rights and the consequences of taking and refusing the test
substantially as set out in subsection 1202(d) of this title.
(C) Whether the person refused to permit the test.
(D) Whether the test was taken and the test results indicated that the person’s alcohol
concentration was at or above a legal limit specified in subsection 1201(a) or (d)
of this title, at the time of operating, attempting to operate, or being in actual
physical control of a vehicle in violation of section 1201 of this title, whether the testing methods used were valid and reliable, and whether the test results
were accurate and accurately evaluated. Evidence that the test was taken and evaluated
in compliance with rules adopted by the Department of Public Safety shall be prima
facie evidence that the testing methods used were valid and reliable and that the
test results are accurate and were accurately evaluated.
(E) Whether the requirements of section 1202 of this title were complied with.
(2) No less than seven days before the final hearing, and subject to the requirements
of Vermont Rule of Civil Procedure 11, the defendant shall provide to the State and
file with the court a list of the issues (limited to the issues set forth in this
subsection) that the defendant intends to raise. Only evidence that is relevant to
an issue listed by the defendant may be raised by the defendant at the final hearing.
The defendant shall not be permitted to raise any other evidence at the final hearing,
and all other evidence shall be inadmissible.
(i) Finding by the court. The court shall electronically forward a report of the hearing to the Commissioner.
Upon a finding by the court that the law enforcement officer had reasonable grounds
to believe that the person was operating, attempting to operate, or in actual physical
control of a vehicle in violation of section 1201 of this title and that the person refused to submit to a test, or upon a finding by the court that
the law enforcement officer had reasonable grounds to believe that the person was
operating, attempting to operate, or in actual physical control of a vehicle in violation
of section 1201 of this title and that the person submitted to a test and the test results indicated that the person’s
alcohol concentration was at or above a legal limit specified in subsection 1201(a)
or (d) of this title, at the time the person was operating, attempting to operate,
or in actual physical control, the person’s operating license, or nonresident operating
privilege, or the privilege of an unlicensed operator to operate a vehicle shall be
suspended or shall remain suspended for the required term and until the person complies
with section 1209a of this title. Upon a finding in favor of the person, the Commissioner shall cause the suspension
to be canceled and removed from the record, without payment of any fee.
(j) Venue and conduct of hearings. Venue for proceedings under this section shall be in the territorial unit of the Superior
Court where the offense is alleged to have occurred. Hearings under this section shall
be summary proceedings conducted by the Criminal Division of the Superior Court without
a jury and shall be subject to the Vermont Rules of Civil Procedure only as consistent
with this section. The State has the burden of proof by a preponderance of the evidence.
Affidavits of law enforcement officers, 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.
(k) Appeal. A decision of the Criminal Division of the Superior Court under this section may be
appealed as a matter of right to the Supreme Court. The suspension shall not be stayed
pending appeal unless the defendant is reasonably likely to prevail on appeal.
(l) Access to information. In connection with a proceeding under this section, the operator shall have access
to all written statements and information in the possession and control of the State
concerning the evidentiary test or tests, including the police report, processing
forms, certification and affidavit, breath test results, police notes, and the names
and addresses of witnesses. If the operator intends to rely on the independent analysis,
the State shall have access to the test results from the independent analysis and
names and addresses of all witnesses. No depositions or written interrogatories shall
be permitted except in extraordinary circumstances.
(m) Second and subsequent suspensions. For a second suspension under this subchapter, the period of suspension shall be 18
months and until the person complies with section 1209a of this title. However, during the suspension, an eligible person may operate under the terms of
an ignition interlock RDL or ignition interlock certificate issued pursuant to section 1213 of this title. For a third or subsequent suspension under this subchapter, the period of suspension
shall be life. However, during this lifetime suspension, an eligible person may operate
under the terms of an ignition interlock RDL or ignition interlock certificate issued
under section 1213 of this title.
(n) Presumption. In a proceeding under this section, if at any time within two hours of operating,
attempting to operate, or being in actual physical control of a vehicle a person had
an alcohol concentration at or above a legal limit specified in subsection 1201(a)
or (d) of this title, it shall be a rebuttable presumption that the person’s alcohol
concentration was at or above the applicable limit at the time of operating, attempting
to operate, or being in actual physical control.
(o) Use immunity. No testimony or other information presented by the defendant in connection with a
proceeding under this section or any information directly or indirectly derived from
such testimony or other information may be used for any purpose, including impeachment
and cross-examination, against the defendant in any criminal case, except a prosecution
for perjury or giving a false statement.
(p) Suspensions to run concurrently. Suspensions imposed under this section or any comparable statute of any other jurisdiction
and sections 1206, 1208, and 1216 of this title or any comparable statutes of any other jurisdiction, or any suspension resulting
from a conviction for a violation of section 1091 of this title from the same incident, shall run concurrently and a person shall receive credit
for any elapsed period of a suspension served in Vermont against a later suspension
imposed in this State.
(q) Rules. The Supreme Court shall adopt rules ensuring the fairness of proceedings under this
section.
(r) Surcharge; Public Defender Special Fund; DUI Enforcement Special Fund. A person suspended under this section for a refusal shall be assessed a surcharge
of $50.00 that shall be collected by the Department of Motor Vehicles prior to reinstatement
of the person’s driving privileges. The Department shall transfer the surcharge assessed
under this subsection to the Public Defender Special Fund created in 13 V.S.A. § 5239 specifying the source of the monies being deposited. All such monies shall be used
by the Office of the Defender General to cover the cost of providing statewide 24-hour
legal services coverage as required by subsection 1202(g) of this title. After $40,000.00 has been deposited in the Public Defender Special Fund in a single
fiscal year, all additional collected surcharges assessed under this subsection in
that fiscal year shall be credited to the Governor’s Highway Safety Commission for
deposit in a DUI Enforcement Special Fund established and managed pursuant to 32 V.S.A. chapter 7, subchapter 5. All such DUI Enforcement Special Fund receipts shall be used exclusively
for statewide DUI enforcement and for no other purpose.
(s) [Repealed.]
(t) Nonmandatory time limits. For a first offense, the time limits set forth in subsections (g) and (h) of this
section are directive only and shall not be interpreted by the court to be mandatory
or jurisdictional.
(u) Testimony by telephone. In any proceeding under this section, for cause shown, a party’s chemist may be allowed
to testify by telephone in lieu of a personal appearance. (Added 1969, No. 267 (Adj. Sess.), § 5; amended 1971, No. 14, § 9, eff. March 11, 1971; 1973, No. 79, § 5, eff. May 23, 1973; 1975, No. 103, § 2, eff. May 30, 1975; 1979, No. 58, § 1; 1981, No. 103, § 6; 1983, No. 134 (Adj. Sess.), § 4; 1989, No. 68, § 5, eff. Dec. 1, 1989; 1991, No. 55, § 6; 1995, No. 77 (Adj. Sess.), § 8, eff. March 21, 1996; 1995, No. 112 (Adj. Sess.), § 12, eff. April 22, 1996; 1997, No. 56, §§ 4, 7, eff. Aug. 1, 1997; 1997, No. 117 (Adj. Sess.), § 16; 1999, No. 160 (Adj. Sess.), § 18, eff. May 29, 2000; 2001, No. 146 (Adj. Sess.), § 3; 2009, No. 126 (Adj. Sess.), § 4, eff. July 1, 2011; 2009, No. 154 (Adj. Sess.), § 160; 2011, No. 46, § 8, eff. July 2, 2011; 2011, No. 56, §§ 4, 16, eff. March 1, 2012; 2011, No. 90 (Adj. Sess.), § 7; 2013, No. 57, § 19; 2015, No. 158 (Adj. Sess.), § 49; 2019, No. 32, § 8; 2019, No. 131 (Adj. Sess.), § 191; 2023, No. 85 (Adj. Sess.), § 286, eff. July 1, 2024; 2025, No. 41, § 2, eff. July 1, 2025; 2025, No. 66, §§ 32, 33, eff. July 1, 2025.)