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Rule 80.7 – Procedures for immobilization or Forfeiture Hearings Pursuant to 23 V.S.A. Section 1213c

May 14, 2021 | Civil Procedure, Vermont

(a)Applicability of Rule. This rule applies to the summary civil proceedings held in the District Court pursuant to 23 V.S.A. § 1213c.
(b)Complaint. Whenever the state intends to seek immobilization or forfeiture of a motor vehicle pursuant to 23 V.S.A. § 1213c, it shall file in the District Court a complaint that contains a motion requesting the remedy sought on a form approved by the Court Administrator. The complaint shall be entitled “State v. [year/make/model/VIN of vehicle]; [criminal defendant], Respondent,” and shall set forth the particulars of the criminal offense and the prior convictions under 23 V.S.A. §§ 674(b), 1201, that are the basis of the motion. The complaint shall be filed in the court where proceedings on the criminal offense are pending and shall, whenever practicable, be filed within 45 days after arraignment.
(c)Notice Upon Filing of Complaint.

(1)Service. When the complaint is filed, the state shall cause notice to be served upon all persons to whom notice must be given under 23 V.S.A. § 1213c(a). The notice shall be served by any method appropriate under Rule 4(d)-(k).
(2)Content. The notice shall be on a form approved by the Court Administrator and shall contain a description of the motor vehicle, including vehicle identification number, make, model, and year, and the name of the registered owner or owners, lienholder, and any other person appearing to be an innocent owner or operator as described in 23 V.S.A. § 1213c(g). The notice shall be accompanied by a copy of the complaint and shall state:

(A) That, if the defendant pleads or is found guilty of the criminal offense that is the basis of the motion for immobilization or forfeiture, any person who is an owner, an innocent owner or operator, or who holds a security interest in, or claims any interest in the motor vehicle may appear and be heard to protect that person’s interest at a hearing on the motion contained in the complaint;
(B) That, if the defendant pleads or is found guilty, the court will set a date for hearing on the motion, which shall be at the time of sentencing.
(C) That any recipient of the notice who wishes to receive notice of further proceedings on the motion must file with the court within 14 days after service of the notice a writing containing the recipient’s current mailing address; and
(D) That all further notice will be sent by the court by first-class mail to the recipient at the address provided by the recipient pursuant to subparagraph (C) of this paragraph or, if the recipient does not provide an address, to the address shown on the records of the department of motor vehicles in the state in which the vehicle is registered or titled.
(d) Date and Notice of Hearing; Response.

(1)Hearing Date. Upon a verdict, finding, or plea of guilty, if the court determines the defendant is guilty of a criminal offense upon which a motion for immobilization or forfeiture is based, the court, on the request of the state, shall set a date for hearing on the motion which shall be at the time set for sentencing or any continuation thereof. If no motion has been filed, the state, upon request, shall have five days from the determination of guilt to file a motion. The court may sentence the defendant prior to the filing of the motion or any hearing thereon, but shall continue the sentencing hearing, upon request of the state, to allow time for the filing of the motion and the holding of a hearing. If the court finds the defendant not guilty of the offense, or if the state does not file a request for hearing within 7 days after a determination of guilt, the motion for immobilization or forfeiture will be deemed withdrawn, and the complaint will be dismissed.
(2)Notice of Hearing. At least 14 days prior to the date set for hearing, the court shall send notice of the time and place of the hearing by first-class mail to all persons to whom notice must be given under 23 V.S.A. § 1213c(a). Notice shall be deemed received on the third day after mailing. It shall be sufficient to mail the notice to the address provided by the recipient for that purpose pursuant to subparagraph (c)(2)(C) of this rule or, if the recipient has not provided an address, to the address shown on the records of the department of motor vehicles in the state in which the vehicle is registered or titled. The notice shall contain a statement informing recipients that if they wish to be heard in opposition to the motion they must proceed as provided in paragraph (3) of this subdivision.
(3)Response. Any recipient of the notice who wishes to be heard in opposition to the motion must file with the court within 7 days after receipt of the notice a written statement setting forth the grounds upon which granting of the motion is opposed.
(e)Motions, Discovery; Subpoenas; Hearings.

(1)Prehearing Motions and Discovery. No prehearing motions or discovery shall be allowed without permission of the court upon a showing of good cause therefor.
(2)Subpoenas. Subpoenas shall be issued pursuant to Rule 45 of the Vermont Rules of Civil Procedure.
(3)Hearing. The hearing on the motion shall be conducted in accordance with 23 V.S.A. § 1213c(d)-(j). Rule 6 of the Vermont Rules of Small Claims Procedure shall govern procedure so far as applicable. Affidavits of law enforcement officers setting forth the identity of the vehicle and of the operator, records of the department of motor vehicles in the state in which the vehicle is registered or titled, and the court’s record of the proceedings on the criminal offense that is the basis of the motion shall be admissible in evidence. The factual issues at the hearing shall be limited to the issues listed in 23 V.S.A. § 1213c(f)-(i).
(f)Appeal. Any party entitled thereto by law may appeal to the Supreme Court from the decision of the District Court on the motion.
(g)Applicability of Civil Rules. These rules shall apply to proceedings under this rule, except as follows:

(1) The following rules shall not apply: Rules 3 (Commencement of Action), 3.1 (In Forma Pauperis), 4.1 (Attachment), 4.2 (Trustee Process), 4.3 (Arrest), 7(a) (Pleadings Allowed), 8 (General Rules of Pleading), 9 (Pleading Special Matters), 10 (Form of Pleadings), 12 (Defenses and Objections), 13 (Counterclaim and Cross-Claim), 14 (Third-Party Practice), 15 (Amended Pleadings), 16.1 (Complex Actions), 16.3 (Alternative Dispute Resolution), 38 (Jury Trial of Right), 39 (Trial by Jury or by the Court), 40(a)-(d) (Calendar; Continuances), 41 (Dismissal of Actions), 47 (Jurors), 48 (Juries of Less than Twelve), 49 (Special Verdicts), 50 (Motion for Directed Verdict and for Judgment Notwithstanding the Verdict), 51 (Arguments of Counsel; Instructions to Jury), 56 (Summary Judgment), 62 (Stay), 64 (Replevin), 65 (Injunctions), 65.1 (Security), 66 (Receivers), 67 (Deposit in Court), 68 (Offer of Judgment), 70-76 (Judgments, Process, Appeals), 80.1-80.2 (Mortgage Foreclosure and Naturalization), 80.4 (Habeas Corpus), 80.5 (Procedure for Civil License Suspensions and Penalties for DWI), and 80.6 (Traffic and Municipal Ordinance Bureau Procedures).
(2) Rules 2637 (Discovery) shall apply as directed by the court consistent with the summary nature of proceedings under this rule, when permission to undertake discovery has been granted pursuant to paragraph (e)(1) of this rule.
(3) In case of a conflict between this rule and another provision of these rules, the provisions of this rule shall govern.

Vt. R. Civ. P. 80.7

Adopted March 6, 2002, eff. July 1, 2002; March 25, 2003, eff. July 1, 2003; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

Rules 80.7(c)(2)(C) and (d)(l)-(3) are amended to extend their 5-and 10-day time periods to 7 and 14 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.