§ 1202. Consent to taking of tests to determine blood alcohol content or presence of other
drug
(a)(1) Implied consent. Every person who operates, attempts to operate, or is in actual physical control of
any vehicle on a highway in this State is deemed to have given consent to an evidentiary
test of that person’s breath for the purpose of determining the person’s alcohol concentration
or the presence of other drug in the blood. The test shall be administered at the
direction of a law enforcement officer.
(2) Blood test. If breath testing equipment is not reasonably available or if the officer has reason
to believe that the person is unable to give a sufficient sample of breath for testing
or if the law enforcement officer has reasonable grounds to believe that the person
is under the influence of a drug other than alcohol, the person is deemed to have
given consent to the taking of an evidentiary sample of blood. If in the officer’s
opinion the person is incapable of decision or unconscious or dead, it is deemed that
the person’s consent is given and a sample of blood shall be taken. A blood test sought
pursuant to this subdivision shall be obtained pursuant to subsection (f) of this
section.
(3) Saliva test. If the law enforcement officer has reasonable grounds to believe that the person is
under the influence of a drug other than alcohol, or under the combined influence
of alcohol and a drug, the person is deemed to have given consent to providing of
an evidentiary sample of saliva. A saliva test sought pursuant to this subdivision
shall be obtained pursuant to subsection (f) of this section. Any saliva test administered
under this section shall be used only for the limited purpose of detecting the presence
of a drug in the person’s body and shall not be used to extract DNA information.
(4) Evidentiary test. The evidentiary test shall be required of a person when a law enforcement officer
has 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.
(5) Fatal collision or incident resulting in serious bodily injury. The evidentiary test shall also be required if the person is the surviving operator
of a motor vehicle involved in a fatal incident or collision or an incident or collision
resulting in serious bodily injury and the law enforcement officer has reasonable
grounds to believe that the person has any amount of alcohol or other drug in the
person’s system.
(b) A refusal to take a breath test may be introduced as evidence in a criminal proceeding.
(c) A person who is requested by a law enforcement officer to submit to an evidentiary
test or tests has a right as limited in this subsection 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 not later than 30 minutes after the time of the initial attempt to contact the
attorney. The person must make a decision about whether to submit to the test or tests
at the expiration of the 30 minutes, regardless of whether a consultation took place.
(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 not 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, 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;
(B) is involved in a crash 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; or
(C) knowingly hinders the collection of an evidentiary blood sample when a warrant for
that person’s blood is issued pursuant to subdivision (f)(1) of this section.
(e) In any proceeding under this subchapter, a law enforcement officer’s testimony that
the officer is certified pursuant to section 20 V.S.A. § 2358 shall be prima facie evidence of that fact.
(f)(1) If a blood test is sought from a person pursuant to subdivision (a)(2) of this section,
or if a person who has been involved in a crash or collision resulting in serious
bodily injury or death to another refuses an evidentiary test, a law enforcement officer
may apply for a search warrant pursuant to Rule 41 of the Vermont Rules of Criminal
Procedure to obtain a sample of blood for an evidentiary test. Pursuant to subdivision
(d)(6) of this section, if a blood sample is obtained by search warrant, the fact
of the refusal may still be introduced in evidence, in addition to the results of
the evidentiary test. Once a law enforcement official begins the application process
for a search warrant, the law enforcement official is not obligated to discontinue
the process even if the person later agrees to provide an evidentiary sample. The
limitation created by Rule 41(g) of the Vermont Rules of Criminal Procedure regarding
blood specimens shall not apply to search warrants authorized by this section.
(2) If an evidentiary saliva test is sought from a person pursuant to subdivision (a)(3)
of this section, a law enforcement officer may apply for a search warrant pursuant
to Rule 41 of the Vermont Rules of Criminal Procedure to obtain a sample of saliva
for the evidentiary test. Pursuant to subdivision (d)(6) of this section, if a saliva
sample is obtained by search warrant, the fact of the refusal may still be introduced
in evidence, in addition to the results of the evidentiary test.
(g) The Defender General shall provide statewide 24-hour coverage seven days a week to
ensure that adequate legal services are available to persons entitled to consult an
attorney under this section. (Added 1969, No. 267 (Adj. Sess.), § 2; amended 1973, No. 79, § 2, eff. May 23, 1973; 1977, No. 96, eff. May 5, 1977; 1981, No. 103, § 3; 1985, No. 228 (Adj. Sess.), § 3; 1989, No. 68, § 3, eff. Dec. 1, 1989; 1991, No. 55, § 3; 1991, No. 57, § 2, eff. July 4, 1991; 1997, No. 56, §§ 2, 3, eff. Aug. 1, 1997; 1997, No. 117 (Adj. Sess.), § 14; 1999, No. 160 (Adj. Sess.), § 16; 2001, No. 146 (Adj. Sess.), § 2; 2017, No. 62, § 9; 2017, No. 132 (Adj. Sess.), § 14; 2019, No. 164 (Adj. Sess.), § 23; 2025, No. 41, § 2, eff. July 1, 2025.)