[A] communications failure between the courts and a state agency has likely led to some Vermont drivers being wrongly convicted for a criminal driving offense.
State officials this week discovered that some fines motorists paid to the Judicial Bureau for driving with a suspended license (DLS), a civil offense, were not properly logged with the Department of Motor Vehicles.
As a result, drivers may have been incorrectly charged with a criminal violation. It is not known at this point how many Vermonters have been affected by the administrative error.
Under Vermont law, drivers face a civil charge — typically a fine — the first five times they are caught driving with a license that was suspended for a civil reason (such as an unpaid speeding ticket). The sixth time they are stopped, they face a more serious charge — criminal instead of civil. But if a civil citation fine is paid, it no longer counts toward the five-violation threshold for a criminal charge.
In a number of cases, DLS payment information has not been recorded at the DMV, and drivers have been criminally cited — even though they already paid civil fines.
The scope of the glitch is unclear at this point. Court administrator Patricia Gabel told VTDigger Friday that some 900 criminal cases of operating with a civilly suspended license have resulted in convictions since the law was enacted July 1, 2014. Court officials do not know how many of those convictions could be inaccurate. All 900 cases, which involve a total of 617 individuals, will be reviewed. Some people have more than one conviction.
Defender General Matt Valerio estimates that as many as 3,000 DLS cases, settled or pending, could be affected.
The new law allows Vermonters two ways to remove the citations from their driving records. Drivers can complete a diversion program or pay a fine. The state’s court system is required to alert the DMV when a person has settled the charge so that it doesn’t count toward the five civil violation threshold. Cases prior to July 1, 2014, are not affected because the five-violation policy was not in effect.
Chauncey Liese, chief of driver improvement at the DMV, and Transportation Secretary Chris Cole said DMV will work with the Judiciary to find a solution, but it is not yet clear when a fix will be in place.
“We would have to be in consultation with the Department of Motor Vehicles” to find a fix, said Gabel. She added “there may or may not be an IT solution.”
The enforcement division of DMV issued a bulletin Thursday notifying Vermont law enforcement officials that the database that provides information on an individual’s citations may not be accurate.
William J. Elovirta, the interim director of the DMV Enforcement & Safety Division, said in the bulletin that at this time, “state motor vehicle records may not reflect the payment of all tickets and therefore may not reflect information that is necessary to determine whether a motorist is in (criminal) violation.”
For the time being, DMV has eliminated a “flag” in the database for drivers that have five DLS violations. Drivers with a criminally suspended license, because of a drunken driving conviction, for example, will still be flagged.
Some state prosecutors have instructed police to issue civil citations, rather than criminal violations, to drivers operating a vehicle with a suspended license.
Valerio instructed public defenders not to accept any plea bargains in DLS cases until the problem is cleared up.
“For any case where there was a charge brought, we don’t know whether the suspension that was the basis of the charge was valid,” Valerio said.
The defender general said that criminal DLS cases are the “No. 1” type of charge that state defense attorneys deal with. The cases represent about 12 percent of public defenders’ annual caseload, Valerio said.
The Shumlin administration learned this week that the DMV was not getting updated information from the Judiciary.
“We’re hopeful that this is not a widespread problem that has affected many, many people,” Scott Coriell, the governor’s spokesperson, said Friday.
Valerio has contacted the Attorney General’s Office, Vermont prosecutors and members of the Judiciary to discuss a global solution for motorists who have faced DLS charges in the past 15 months. That solution, he said, might include amnesty.
To “figure out who was wrongfully suspended and who was appropriately suspended, it may not be worth the amount of resources that would take,” Valerio said.
Washington County State’s Attorney Scott Williams said his office is reviewing more than a dozen cases of criminally suspended licenses that are currently pending to see if they should be dismissed.
On Friday a DLS case came in that Williams said he was not planning to prosecute because of the problem with the DMV records.
In response to the communications failure, the Chittenden County State’s Attorney’s Office sent a memo to county law enforcement directing them to issue civil citations, rather than criminal.
Bram Kranichfeld, the chief deputy state’s attorney, says prosecutors “can’t find probable cause because we can’t find from the record whether prior [operating with a civilly suspended license] convictions reflected in the DMV report actually count.”
(Earlier this year, T.J. Donovan, the Chittenden County state’s attorney, led a one day amnesty program that forgave drivers with suspended licenses. The program was designed to help low-income Vermonters with DLS offenses who have had difficulty paying fines.)
David Cahill, executive director for the Department of State’s Attorneys and Sheriffs, said that other state’s attorneys had taken similar actions.
Cahill is part of a working group looking at DLS laws. The group will be finalizing a recommendation for legislation later this month that may come before lawmakers next year.
“Our laws regarding DLS are perhaps overly complex and cumbersome when it comes to achieving the public safety goals of keeping dangerous drivers off the road,” Cahill said.
