Wednesday, January 16, 2008

Rep. Maxine Grad's Legislative Update

My committee, House Judiciary started in full swing this week. The following is a summary of issues we began to consider.

Boating While Under the Influence: The Vermont Supreme court recently issued a decision that calls into question charging and sentencing within our BUI laws. The court stated that when there is one incident of BUI and multiple deaths, a person could only be charged with one count of boating while intoxicated with death resulting even though there is more than one death. The court called on the Legislature to clarify the law.

The Supreme Court’s decision was in a case that involved the tragic death of two children while watching fireworks at Basin Harbor on the 4th of July. The court’s result, according to the prosecutor and the family of one of the children who died, sent a message that their child’s death didn’t count. During testimony, the example came up that if a drunk driver hit a school bus and 20 children died, there should be the ability to charge the defendant for each death.

There also isn’t any law regarding BUI with serious bodily injury resulting as we do in DUI law. We also discussed the need to distinguish in our law penalties for serious bodily injury and death.

Further, there is law prohibiting driving while intoxicated while operating a commercial vehicle or school bus, but nothing for commercial drivers of boats. The committee is considering changing that.

Additionally, the question of snowmobiles arose. Current law brings snowmobiles into the DUI laws. We heard testimony that boats and autos present the same risk and should be consistent, as they present similar threats to public safety.

Judiciary Budget

We heard testimony from the court administrator that the judiciary is 2 million dollars in the red. As an attempt to remedy this, certain important positions like judges, family court staff and educational and outreach staff positions are not being filled. The committee is very concerned that if our judiciary isn’t properly funded it seriously undermines our citizen’s access to justice and the courts, a foundation of our constitutional system.

Police Line Ups, Photo Identifications, Custodial Interrogations of Suspects and Preservation of Evidence in Criminal Cases Study Committee Report:

The committee is comprised of members from the law enforcement, victims, legal and defense community. The need for the report came out of my committee’s work on the Innocence Protection Act.

1. Eyewitness Identification of Suspects: While listening to this testimony, I realized I watch too much Law and Order! In Vermont, law enforcement rarely uses line-ups. We simply do not have the population base to find enough people that look like the suspect to eliminate any possibility of suggestiveness.

Photo line-ups aren’t used very often either. The committee did however recommend that there should be policy regarding the use of a neutral law enforcement officer, one not involved with the case to show the victim or witness the photos. Body language and unconscious messages are very common and could prejudice the integrity of the procedure and lead to suppression of evidence and dismissal of the case.

The committee is concerned that as Vermont becomes more diverse, cross-racial misidentifications will become an issue.

2. Custodial Interrogations: currently there isn’t law on mandatory videotaping of when a suspect is in police custody and is being interrogated. The best practice is to at a minimum audio record the interview, but also videotape. The committee stated that videotaping should be used whenever possible, is part of the best practice, but should not be mandated. However, if the technology fails, which it often does, failure to have the taped interrogation could lead to problems in court with suppression of evidence. The committee requested that adoption of best practices through some sort of policy, not legislation.

3. Best Law Enforcement Practices for Preservation of Evidence. Currently, there is not statewide policy on preservation of evidence. The proper preservation of evidence can make or break a criminal case. The committee recommended that the procedures taught at the police academy should be recognized as best practices. The committee also said that ideally, there should be one, new statewide evidence repository, with climate control, specialized support, and for budgetary reasons, be housed in an existing facility.

My committee will continue to look at all of this. We have a series of options from having shed light on the issue through the report and this week’s testimony, to enacting legislation, recommending policies, and working with the Judiciary and or the executive branch to adopt a rule or policy. Other states have done it many different ways. I would like to have a dialogue with the members of the judicial and executive branch on ways to address these issues as a starting point.

I, as vice chair of the judiciary committee feel very strongly that the role of my committee is to help support the integrity of our criminal justice system by ensuring our courts, law enforcement, prosecutors, defense, and victims all have the support they need to properly charge, investigate, litigate and decide cases. The healthy functioning of our criminal justice system goes to the core of a healthy democratic society, and therefore significantly impacts the health of Vermonters and our communities.


Congratulations to the Roxbury Free Public Library for its receipt of a cultural facilities grant for the construction of a bathroom and ramp.

Congratulations to James Donahue of Northfield for his selection as a Legislative Page. James started the session with us in the first group as pages.

Please stay in touch:, 828-2228 (State House), 496-4244 (home). Thank you for giving me the opportunity to serve you. It is a privilege and honor, Representative Maxine Grad

No comments: