Rule 80.5.Civil license suspensions and penalties for DWI

Reporter’s Notes—2021 Amendment: Rule 80.5(e) is amended to reflect the fact that 23 V.S.A. § 1203(k), as amended by 2007, No. 153 (Adj. Sess.), § 2, now provides that in DUI cases the fee for video reproduction is $45.00.

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.

Reporter’s Notes—2011 Amendment: Rule 80.5(j) is amended to substitute a more functional standard of review based on the language of V.R.A.P. 5(b). The present language provides a circular standard. A judge who thinks that the defendant is likely to prevail on appeal should simply enter judgment for the defendant.

Reporter’s Notes—2005 Amendment: Rule 80.5(e), (f) are amended to make clear the relationship of the rule to the provisions of 23 V.S.A. § 1205(g), (h) and to eliminate obsolete language that created a discrepancy between the rule and the statute concerning the time of the final hearing. The amendments incorporate the statutory provisions, which state that the preliminary hearing is to be held within 21 days after the date of the alleged offense and that the final hearing is to be held within 21 days of the preliminary hearing, but “[i]n no event” not more than 42 days after the date of the offense unless set at a later date or continued by the consent of the defendant or for good cause shown. Note that 23 V.S.A. § 1205(t) specifically provides that in the case of a first offense, these time limits “are directive only, and shall not be interpreted by the court to be mandatory or jurisdictional.” This provision was enacted by Act No. 160 of 1999 (Adj. Sess.), § 18, after the Supreme Court in two cases had held that the provisions of 23 V.S.A. § 1205(h) were mandatory and required dismissal of the proceeding if the final hearing was not held within 42 days where the state had failed to show good cause. State v. Tongue, 170 Vt. 409, 753 A.2d 356 (2000); State v. Singer, 170 Vt. 346, 749 A.2d 614 (2000). Thus, pursuant to § 1205(t), if the hearing on a first offense cannot be held within 42 days of the offense, the court is not to dismiss the proceeding on that ground even if good cause for the delay cannot be shown by the state. If the proceeding is for a second offense, the time limit of § 1205(h) is mandatory and the proceeding may be dismissed in the absence of a showing of good cause. Of course, even in the case of a first offense, if the state’s delay amounts to a “failure . . . to prosecute or to comply with these rules” in some other respect, the court may grant a motion to dismiss under V.R.C.P. 41(b)(2). Rule 80.5(f) is also amended to eliminate the previous incorporation of the trial procedure of Rule 6 of the Vermont Rules of Small Claims Procedure and to set forth in systematic form the provisions of 23 V.S.A. § 1205(h), (j) governing the procedure for final hearing of a civil suspension proceeding under the statute. Application of the Small Claims Rule (and its predecessor, V.R.C.P. 80.3(i)) proved cumbersome because the lack of pleadings in a civil suspension proceeding made it very difficult for the judge to follow the requirement of the Small Claims Rule that the judge examine the witnesses and assist the parties in developing evidence. Because 23 V.S.A § 1205(j) contains no provision concerning the rules of evidence, the language of V.R.S.C.P. 6(b), providing a flexible standard of admissibility similar to that of the Administrative Procedure Act, 3 V.S.A. § 810, has been adopted and incorporated in Rule 80.5(f)(3). Under the rule, the privilege provisions of the Vermont Rules of Evidence, V.R.E. 501-512, do apply. Note that 23 V.S.A. § 1205(j) provides that hearings under § 1205 “shall be subject to the District Court Civil Rules [now the Rules of Civil Procedure] only as consistent with this section.” V.R.C.P. 80.5(k), after listing specific provisions of the Civil Rules that are inapplicable to proceedings under Rule 80.5, states that “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.”

Reporter’s Notes: Rule 80.5 is added in light of the abrogation of the District Court Civil Rules and the resulting applicability of the Vermont Rules of Civil Procedure to District Court civil actions. See Reporter’s Notes to simultaneous amendment of Rule 1. For the prior history of the provisions of the rule, see Reporter’s Notes to former D.C.C.R. 80.5 and 1991 emergency amendment and 1992 amendment.