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Rule 80.5 – Criminal Division Procedures for Civil License Suspensions and Penalties for DWI

May 14, 2021 | Civil Procedure, Vermont

(a)Applicability of Rule. This rule applies to the summary civil court proceedings held in the Criminal DIvision pursuant to 23 V.S.A. § 1205.
(b)Information Obtained from Operator. A law enforcement officer acting pursuant to 23 V.S.A. § 1202 shall make a reasonable inquiry as to the operator’s mailing address. This may consist of asking the operator whether the address shown on the operator’s license is a correct mailing address of the operator, and if it is not, informing the operator that a correct address is needed. The address obtained shall be the address to which the notice of suspension and affidavit will be mailed, pursuant to subdivision (e) below, unless the operator subsequently informs the officer or the officer’s department or agency of another address.

The officer shall also inquire whether the operator is currently on active duty in the armed forces.

(c)Notice of Suspension; Affidavit. The notice of suspension shall be in a form approved by the Supreme Court and distributed by the Court Administrator and shall include a date of preliminary hearing, and an explanation of the procedure by which the preliminary hearing may be waived. The notice of suspension and the affidavit may be mailed by first-class mail. A copy of the affidavit of the law enforcement officer shall also be mailed by first-class mail or given to the defendant within four days of the date of notice if not already mailed or delivered to the defendant.
(d)Request for Hearing. Any request for hearing by or on behalf of a defendant shall be mailed or delivered to the Commissioner of Motor Vehicles, Attention: Driver Improvement, 120 State Street, Montpelier, Vermont 05602, within seven days after the notice of suspension was delivered to the defendant in person or ten days after the notice was placed in the mail to the defendant.

The Commissioner shall notify the court having venue forthwith of a request for hearing.

For good cause shown, the court may allow a request for hearing to be filed out of time and may stay or vacate the Commissioner’s suspension of license when good cause for the late request has been shown.

(e)Preliminary Hearing; Waiver; Discovery Limited. In every case under this rule, except as set forth below, a preliminary hearing shall be held within 21 days of the alleged offense.

At the preliminary hearing the State and the defendant shall each make available for inspection all nonprivileged information and written statements in their possession and control concerning the evidentiary test or tests, relation back, or other matters to be contested at the hearing on the merits, including without limitation the police report, expert witnesses’ reports, processing forms, affidavit, breath test results, police notes and the names and addresses of witnesses, except that evidence the defendant does not intend to use at the hearing need not be disclosed by the defendant. A copy of a videotape made of the alleged offense and subsequent processing shall be available for purchase by the defendant directly from the law enforcement agency responsible for initiating the action upon written request and advance payment of a $15.00 fee, except that no fee shall be charged to a defendant whom the court has determined to be indigent. The fees collected for videotapes sold under this rule shall be allocated in the manner prescribed by Rule 16 of the Vermont Rules of Criminal Procedure. Discoverable evidence not known at the time of the preliminary hearing shall be disclosed to the party immediately when it becomes known. Failure to provide discovery in accordance with this paragraph may be subject to appropriate sanctions in the discretion of the court, which may include preclusion of any witness or evidence not timely disclosed.

A defendant to whom notice of suspension has been delivered or mailed shall appear by counsel or pro se at the preliminary hearing unless, prior to the hearing, the district court in the exercise of its discretion grants a request for waiver of the preliminary hearing. The request for waiver may be granted only if supported by affidavit establishing hardship and setting forth a telephone number at which the person may be contacted during business hours to be informed of the court’s ruling.

At the preliminary hearing the court shall ensure that the required disclosure has occurred, provide the defendant with an explanation of the procedures to be followed at the hearing on the merits, determine whether the defendant continues to seek a hearing on the merits, and, if so, schedule the hearing to be held within 21 days of the date of the preliminary hearing and not more than 42 days after the date of the alleged offense without the consent of the defendant or for good cause shown.

In extraordinary circumstances, the court may authorize use of discovery pursuant to these rules in addition to that set forth in this subdivision, but subject to the time constraints of this rule.

(f)Trial Procedure.

(1) The final hearing on the merits shall be held on the date set at the preliminary hearing unless continued by the consent of the defendant or for good cause shown.
(2) The issues at the final hearing shall be limited to those set forth in 23 V.S.A. § 1205. No less than seven days before the final hearing, and subject to the requirements of Rule 11 of these Rules, the defendant shall provide to the state and file with the court a list of the issues set forth in 23 V.S.A. § 1205 that the defendant intends to raise. Only evidence that is relevant to an issue listed by the defendant may be admitted on behalf of the defendant at the final hearing.
(3) Hearings under this subdivision shall be summary proceedings conducted by the District Court without a jury. Evidence is admissible if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs, and the Vermont Rules of Evidence are inapplicable except for the rules respecting privilege. The state has the burden of proof by a preponderance of the evidence. Proceedings shall be recorded electronically or stenographically.
(4) Affidavits of law enforcement officers, chemists of either party, or expert witnesses of either party shall be admissible evidence that may be rebutted by witnesses called by either party. Except with the consent of the other party, affidavits will be admitted only if they have been delivered to the other party at least five days before the hearing.
(g)Default. Failure to appear at the preliminary hearing, unless a waiver has been granted, or failure to appear at the hearing on the merits shall be grounds for immediate entry of the statutory findings and judgment upon compliance with the Soldiers’ and Sailors’ Civil Relief Act of 1940.

Judgment entered by reason of failure to appear may be set aside for good cause shown.

(h)Inadmissibility of Failure to Contest. Failure to request a hearing, failure to contest the State’s case, and consent to entry of a finding under 23 V.S.A. § 1205(g) shall not be admissible in any civil or criminal proceeding other than a proceeding relating to the validity or fact of suspension.
(i)Time. In computing any period of time prescribed or allowed by 23 V.S.A. § 1205 and this rule, Rule 6(a) shall apply.
(j)Entry of Judgment; Stay. The court’s findings and judgment shall not be entered until five days after they have been delivered to the parties or eight days after they have been mailed to the parties. The defendant may, within that time period, move for stay of the suspension on the grounds that the defendant intends to appeal and that the appeal will raise a question of law as to which there is a substantial ground for difference of opinion. The court may rule upon the motion during the same time period, regardless of whether a memorandum in opposition has been filed.
(k)Applicability of Civil Rules. The following rules shall not apply to proceedings under this rule: Rules 3 (Commencement of Action), 4 (Process), 4.1 (Attachment), 4.2 (Trustee Process), 4.3 (Arrest), 6 (Time), 7(a) (Pleadings Allowed; Form of Motions), 8 (General Rules of Pleading), 9 (Pleading Special Matters), 10(b) (Form of Pleadings), 12 (Defenses and Objections), 13 (Counterclaim and Cross-Claim), 14 (Third-Party Practice), 15 (Amended and Supplemental Pleadings), 16.1 (Complex Actions), 16.3 (Alternative Dispute Resolution), 18-24 (Joinder and Parties), 38-39 (Jury Trial), 41(a)(1) (Voluntary Dismissal by Plaintiff), 47-51 (Jurors and Trial), 53 (Masters), 55 (Default), 56 (Summary Judgment), 57 (Declaratory Judgment), 58 (Entry of Judgment), 64 (Replevin), 65 (Injunctions), 65.1 (Security), 66 (Receivers), 67 (Deposit in Court), 68 (Offer of Judgment), 69 (Execution), 70-76 (Judgments, Process, Appeals), 80.1-80.2 (Mortgage Foreclosure and Naturalization), 80.4 (Habeas Corpus), 80.6 (Traffic and Municipal Ordinance Bureau), and 80.7 (Immobilization and Forfeiture). The remaining Civil Rules do apply, provided that where the court finds that a procedure provided for in those rules would be inconsistent with the summary procedures contemplated by statute, it may order that a different procedure be followed. In case of conflict between this rule and another Civil Rule, the provisions of this rule shall govern.

Vt. R. Civ. P. 80.5

Adopted March 6, 2002, eff. July 1, 2002; amended Nov. 9, 2004, eff. Feb. 1, 2005; Aug. 30, 2011, eff. Oct. 31, 2011; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

The title of Rule 80.5 and the language of Rule 80.5(a) are amended to reflect the redesignation of the former district court as the criminal division of the superior court by Act No. 154 of 2009 (Adj. Sess.), §237(b)(3) (effective July 1, 2010). Rule 80.5(i) is amended consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.