DLS

Reporter’s Note

Notice. The statute, 23 V.S.A. § 674, does not require notice or knowledge of suspension on the part of the offender, and actual notice is not required.  State v. Hebert, 124 Vt. 377, 379 (1964).  The required notice may be satisfied by evidence that the written notice had been sent at least three days earlier, by registered mail or by certified mail.  The statute at 23 V.S.A. § 204 states that a suspension shall be deemed to be in effect three days after deposit in the United States mails, and a reasonable interpretation of that statute is that a notice will be effective three days after mailing.

The Supreme Court approved an instruction on notice, similar to the model instruction, in State v. Cattanach, 129 Vt. 57 (1970).  Where the commissioner had mailed the notice more than three days prior to the offense, “[t]he defendant’s failure to receive delivery of the notice of suspension is not sufficient to bar his conviction for operating a motor vehicle after the revocation went into full force and effect.”  Id. at 61.  A driver has a continuing duty to inform the commissioner of any change of address.  State v. Chicoine, 154 Vt. 653 (1990).

Although § 204 suggests that notice of the suspension will be effective three days after mailing by first class mail, the above cases involved convictions based on certified mail.  It is not clear whether mailing by first class mail would sustain a conviction.

Reason for Suspension. Note that the statute provides for certain mandatory minimum sentencing terms if the license was suspended or revoked for a DUI as compared with suspensions for other reasons. Compare § 674(a) with § 674(b). As such, the model instruction contemplates that the reason for the suspension or revocation is an element of the offense, but the state need not reprove the merits of the underlying suspension or revocation. See State v. Longe, 170 Vt. 35, 41 (1999) (holding that evidence of defendant’s failure to satisfy requirements of alcohol and driving education program under 23 V.S.A. § 1209a was sufficient to establish reason for underlying license suspension in § 674(b) prosecution and that “the instructions, when read in their entirety, required the jury to find that defendant’s license was suspended for failing to comply with § 1209a”); State v. Putnam, 137 Vt. 410, 413, (1979) (defendant cannot collaterally attack underlying license suspension in DLS prosecution except as to jurisdictional issues; State v. Mohr, 146 Vt. 193, 194 (1985) (same); State v. Bacon, 137 Vt. 414, 415 (1979) (same).

Courts should tailor the language of this element to fit the particular circumstances of the case. Bifurcation of the prior conviction that resulted in the license suspension or revocation may not be proper if the remaining elements would not establish a complete crime. See State v. Brillon, 2010 VT 25, ¶ 28, 187 Vt. 444 (“Without a complete crime to present to the jury, bifurcation may result in confusion for jurors and may influence the results of the initial phase of trial.”).

Permissive Inference. As part of the State’s case, “the court shall accept as evidence a printout attested to by the law enforcement officer as the person’s motor vehicle record showing convictions and resulting license suspensions.” 23 V.S.A. § 674(g). That record “shall establish a permissive inference” that the defendant “was under suspension on the dates and time periods set forth in the record.” Id. A certified copy from the Department of Motor Vehicles is not required to establish the permissive inference. Id. However, the jury is not required to draw any inference from the printout.