Thursday, April 28, 2016

Challenging the Reliability of the Government’s Say-so

State v. Taylor2015 VT 104

By Andrew Higley

Nobody likes to lose his or her license. That’s why there are DUI attorneys. The facts here are pretty common of the typical DUI case in Vermont. Defendant was driving through the town of Lyndonville; the police stopped her on suspicion of drunk driving; she submitted to a “preliminary” breath test, and she was then transported to the St. Johnsbury police barracks. There, the officer asked her to submit to another breath test. The test at the police station was conducted on what’s called a DataMaster device. That name always sounded like something out of the Terminator movies. For that reason, I think I’ll refer to it as the “Machine.” The Machine is supposed to be more scientific and reliable than the simple roadside test. At the station, the Defendant blew a 0.158, which is just about twice over the so-called “legal limit.”

Sidenote: for purely criminal DUI purposes, proving a blood alcohol concentration of 0.08 is not necessarily required. Instead, the State needs to prove a person was operating a vehicle under the influence of intoxicating liquor (is there a non-intoxicating liquor?). Hence the reason the above quotation marks. But, this case is only an appeal of a civil license suspension. Here, the State is only required to show your blood-alcohol concentration was above .08. The other key difference is the burden of proof. Because the sanction is non-criminal—a license suspension—the State’s burden is only by a preponderance of the evidence, which is roughly only 51%. So the State doesn’t even need a passing grade. 

If The Name Doesn’t Fit, You Can't Collect the Debt

Unifund CCR Partners v. Zimmer, 2016 VT 33

By Thomas M. Kester

This case concerns debt buying, and debt buying is like horse buying except with paper trails longer than horse tails. The present fact pattern happens every so often and, when it does happen, it is the perfect legal storm to learn how the cavalcade of contracts, business records, unjust enrichment, and standing can plummet like Dorthy’s house onto a creditor.

Unifund, who purchased Defendant’s credit card debt, buys debt at a reduced rate and goes after debtors to collect the debt (“buy low, sue high, and take a minimum ¢ on the $ to settle” philosophy). In this case, Defendant owed a balance of $2,453.22 and statutory pre-judgment interest to Citibank. Citibank assigned the debt to Pilot Receivables Management, LLC (“Pilot”), Pilot assigned to Unifund CCR LLC (“UCL”), and UCL assigned to Unifund. The Pilot ---> UCL ---> Unifund transactions all occurred on the same day.

Sunday, April 24, 2016

Considering Conditions

State v. Lontine, 2016 VT 26 (mem.)

By Andrew Delaney

This is a single, specially-assigned-justice bail appeal. Mr. Lontine argues that the trial court failed to make findings supported by clear-and-convincing evidence that “his release would pose a substantial threat of violence to another person and that no conditions of release could reasonably prevent such violence” under this statute. He also argues that because his trial didn’t commence within 60 days, he’s got a get-out-of-jail-free card.

A little constitutional twist (for those three lawyers who graduated from Harvard in the 70s) in this case. The Vermont Constitution provides that a trial has to start within 60 days if a person is held without bail and it’s not a death-penalty or life-imprisonment case. The legislature copied-and-pasted it into a statute.

Mr. Lontine was charged with a bunch of misdemeanor and felony offenses involving his former live-in partner over two different days. When he was arraigned, he didn’t request a public defender. The State requested a hold-without-bail order, and the trial court granted it. Mr. Lontine eventually requested a public defender and the trial court granted the motion that day. Dates were set and so on and so forth. Eventually a weight-of-the-evidence hearing was set, and the trial court continued the hold-without-bail order. At that hearing, defense counsel indicated an intention to depose the complaining witness, though it doesn’t appear any deposition had been set at that point.

Saturday, April 23, 2016

What’s In A Name?

TLOC Senior Living, LLC v. Bingham, 2016 VT 44

By Amy E. Davis

In this case, Defendant Albert Bingham appeals from the trial court’s declaratory judgment. Before the SCOV even rules on it, Bingham files a motion to recuse the entire SCOV because his appeal had been pending for so long. That doesn’t work, and barely makes a footnote in the decision.

Anywho, plaintiff TLOC Senior Living operates a senior living community in Middlebury, Vermont. Plaintiff did business under the name “The Lodge at Otter Creek.” Plaintiff lapsed in its re-registration of the name, and in July 2013, Bingham registered the name under his own name with the Vermont Secretary of State’s Office. Plaintiff sued alleging slander of title, trade infringement, unfair competition, and tortious interference with contract. Bingham argued (through many counterclaims) that by registering the name “The Lodge at Otter Creek” as his business name, he foreclosed any right plaintiff had to the name.

Bingham filed a motion to dismiss, a motion for summary judgment, and a motion for default judgment in his favor. Plaintiff moved for summary judgment in its favor. The court denied both motions for summary judgment, as well as Bingham’s motion for default judgment.

Equities and Expectations

In re Estate of Dezotell, 2016 VT 14

By Amy E. Davis

This case answers the question of whether a trial court is bound by the provisions of an early settlement distribution in a wrongful death case, and if not, whether the trial court need hold an evidentiary hearing to divide the settlement in proportion to the pecuniary interests suffered. Only a lawyer could love, or write, that sentence.

Decedent married wife Maria in March 2001. They met online, and he traveled to Romania where she lived, where they got married. Their child, Roger, was cooking in the womb when decedent was killed in an automobile accident in November 2001. Decedent also had a plethora of other children: four from a previous marriage (Renee, Beverly, Sammie-Jo, and Nicole), an adopted daughter (Jennifer), and a daughter from a previous relationship (Melissan).

Maria was appointed to serve as the estate’s administrator, and petitioned the superior court to distribute a combination of insurance proceeds totaling $135,000. The court issued a written ruling following an evidentiary hearing. The court noted that “pecuniary injuries suffered” were not purely economic losses, but could include loss of companionship, compensation for lost intellectual, moral and physical training or the loss of care, nurture and protection the parent provides.

What Comes In? What Stays Out?

State v. Pratt, 2015 VT 89


Evidence, evidence, evidence. It’s what makes a case, whether for the prosecution or the defense; evidence is what the jury takes to its temporary lair and turns into a verdict. Given that fact, it makes sense that the rules of evidence (the factors which allow evidence to be presented, or prohibit it from being mentioned) are one of those legal frameworks that are always, and will always, be constantly argued by attorneys. The Rules—this can come in, or that can’t come in—create pretty big stakes in a jury trial. Considering the fact that there is an entire law school course (and many, many, continuing legal education classes) devoted solely to these Rules, and the inevitable exceptions, one may imagine (correctly) that it is not exactly a precise science. Our case today highlights some of the nuances of the Rules, and allows SCOV to weigh in on its interpretation of what a jury should be allowed to consider, and what it should not, in the context of a criminal trial.

The Petitioner in this case was convicted of Aggravated Sexual Assault of a Minor following a multi-day jury trial. On appeal, the Petitioner raises three issues for the court to review. One of these issues is procedural and, in the interest of brevity, will not be covered here other to say that SCOV disagreed with the Petitioner’s claim of error. The remaining two issues, both concerning the admissibility of evidence, provide for much more informative (and hopefully entertaining) reading.

Thursday, April 21, 2016

Bail Bungled

State v. Gates2016 VT 36

By Elizabeth Kruska

Twenty four paragraphs in to this bail decision, SCOV gets to what’s really going on here. That there are twenty five paragraphs by five justices devoted to a bail decision, when bail decisions are usually single-justice decisions, also suggests there’s something else going on here.

Jeremy Gates got charged in 2014 with extortion, domestic assault, and unlawful mischief. Sounds bad, right? The allegation, as recounted by SCOV, was that he went to his mom’s residence to get some money. She was his social security payee. She wouldn’t give him money, so he threatened to kill her. He gets social security apparently because he suffers from severe cognitive difficulties. This is in the second paragraph of the opinion, and this is where I start seeing a giant red flag waving around. I totally know what’s coming next.

He was arraigned on the original charges and released on some conditions of release, including a condition that he not have contact with his mom and a condition that he not go to the motel where she was living.

The Wrong Order

State v. Rosenfield, 2016 VT 27

By Elizabeth Kruska

This is a case that appears to boil down to someone doing something in the wrong order and what the right response ought to be.

Michael Rosenfield was convicted of a DUI 1 when he was 18, a DUI 2 when he was 21, and a DUI 3 when he was 27. A DUI 3 is a felony, which carries with it various collateral consequences, including a federal prohibition on owning or possessing firearms, having to submit to the state’s DNA bank, difficulty in getting jobs, and other various issues.

After his DUI 3 conviction, he filed a motion in the criminal court seeking to seal his DUI 1 and DUI 2 convictions. There is a law within the juvenile statutes that provides a procedure for sealing convictions if the conduct occurred before a person turned 21. The thought is that sometimes people who are legally adults, but still pretty young, do dumb things that land them in the criminal justice system. Since it’s hard to go forward in life with a criminal record, this procedure allows sealing of some records so that young people going forward have a clean slate. Good idea.

Tuesday, April 19, 2016

Warning Not Needed

State v. Farrow2016 VT 30


This is a case all about admissibility of standard field sobriety exercises (SFSE) in driving under the influence (DUI) cases. The SFSEs are a series of divided attention tests that drivers are asked to perform physically to aid police in determining whether there is probable cause for a DUI arrest. These generally include an observation test of the subject’s eyes, a test involving walking nine heel-to-toe steps, and a test of standing on one foot. In print, these don’t sound especially hard to do, but they can be difficult given the circumstances of a DUI stop. The person doing the tests is likely nervous, they’re standing on the side of a (possibly very busy) road, it might be nighttime, and a lot of times, they’ve been drinking.

An additional part of the roadside ballet that sometimes gets included is the Modified Rhomberg Test (MRT). This test is designed to help determine if someone has a substance on board that would either speed up or slow down their internal clock. It’s performed by having the person stand with his or her feet together like a cactus, tip his or her head back, and estimate the passage of thirty seconds. Alcohol is a central nervous system depressant. If someone has been drinking, it’s likely the internal clock will go longer than an actual thirty seconds.

Here, Ms. Farrow got stopped for having a bad inspection sticker and was subsequently screened for a DUI. She was asked to perform the MRT. She started to do it, but for some reason stopped a few seconds into the test. She also declined the other field sobriety exercises. At the time of the stop she was 61 years old.

More Probation Conditions

State v. Gauthier2016 VT 37

By Elizabeth Kruska

In this episode’s installment of probation condition woes, SCOV affirms some probation conditions, saying that the defendant had adequate notice of his conditions, and that they were not contradictory or vague.

When Mr. Gauthier was 20, he got charged with a sexual assault on a minor and furnishing alcohol to a minor. It was alleged that he and a fifteen-year-old young woman drank alcohol and smoked pot together, and then had sex in the back of a car. Mr. Gauthier agreed this happened, and in exchange for a guilty plea to the sexual-assault charge, got a five-year-deferred sentence. The alcohol charge got dismissed.

A word about deferred sentences; they can be a double-edged sword. Essentially, what happens is a defendant pleads guilty to a charge and then is placed on probation for a period of time while any actual sentence is deferred. If the person makes it all the way through the probation term without any violations or new charges, the charge gets expunged from the record and treated as if it never happened. However, if the person does violate probation, a violation gets filed and if a violation is found, a sentence gets imposed and the charge stays on the person’s record. This is generally a good deal and totally puts the defendant in the driver’s seat as to whether or not the charge gets expunged.

Sunday, April 17, 2016

Sufficiently Stagnant?

In re T.M., 2016 VT 23

By Andrew Delaney

This case is kind of a big deal. If rumors are correct, this is the first time since I was high-school aged that the SCOV has reversed a termination-of-parental-rights (TPR) finding (side note: I say high-school aged rather than “in high school” because I was homeschooled, which allows me to accurately report that I graduated both first—and last—in my high school class).

A.M. was born in 2011; T.M. about a year and a half later. T.M. has spina bifida (split spine), which is “a permanent birth defect that causes nerve damage and other disabilities.” The Department of Children and Families (DCF) first got involved because of the parents’ drug use (especially mom’s while pregnant with T.M.). A conditional-custody order (CCO) was issued that required the parents to be substance free, participate in counseling, and keep up with T.M.’s medical appointments and A.M.’s daycare. Mom and dad were successful with the CCO, and custody was discharged to mom and dad, though DCF kept an open case.

There were some missed medical appointments and inconsistent daycare; mom was depressed, and dad admitted to drinking and smoking weed. DCF went to court again. When they called dad to tell him a court date had been set, he threatened to take the kids and move to Florida. So DCF sought emergency custody and the trial court granted it. DCF also filed a children-in-need-of-care-or-supervision (CHINS) petition. A little while later, mom and dad agreed to a CHINS finding “that the children were and are in need of care and supervision due to their parents’ substance use and how it interferes with parenting of the children.” 
 

Thursday, April 14, 2016

Wrong, But Not Quite Wrong Enough

State v. Atherton a/k/a Melton2016 VT 25

By Elizabeth Kruska

This is a case of a handful of things that went wrong, but not enough to reverse.

Mr. Atherton (or Melton, but I’m calling him Atherton because it’s listed first) was charged with and ultimately convicted of sexual assault. The facts are pretty brief. Atherton and 3 friends had some drinks and smoked some pot and went to a bar. After the bar they went back to a friend’s house to crash for the night. One of the friends woke up to find Atherton having sex with her. This was unwanted; the friend screamed, and the screams woke up the other friends. The complainant had a sexual assault exam done, and the exam showed no evidence of Atherton having had sex with her. Atherton denied the allegations and had a trial after being charged. The jury found him guilty at the end of the trial.

Mr. Atherton appeals, citing three errors. SCOV affirms, saying that although there might have been some errors, it wasn’t enough to change the outcome of the case.

Sunday, April 3, 2016

Tax Troubles

In re Christena Obregon, Esq., 2016 VT 32

By Andrew Delaney

I hate doing my taxes. Things I would rather do include but are not limited to listening to Rebecca Black’s “Friday” on repeat—and that song is obnoxiously atrocious. If I had to choose between doing my taxes or covering myself in honey and standing on a fire-ant anthill, all I’d want to know is how long I’d have to stand on the anthill. Taxes suck. Usually, I file a six-month extension and spend October 14th cursing the world. So they do get done eventually (though never cheerfully). I can empathize at least a little bit with respondent here.

Respondent failed to timely file her personal Vermont income tax returns for tax years 2006, 2008, 2009, and 2010. This eventually led to disciplinary action, with disciplinary counsel arguing that in renewing her law license in 2009 and 2011, respondent made “false averments on her attorney licensing renewal statements . . . that she was in good standing with respect to all taxes owed.”

This all went down when, in 2007, the Department of Taxes starting sending notices to respondent. She ignored them. Eventually, the Department of Taxes told the Court Administrator about it, and then the Court Administrator passed it along to disciplinary counsel. Disciplinary counsel sent a letter saying, more or less, that the Department of Taxes’ notice clearly and convincingly established that respondent had failed to file 2008 and 2009 tax returns.