Vt. Senate makes it hard to prosecute people for enabling drunken drivers

MONTPELIER, Vt. — The Vermont Senate voted Tuesday to make it harder for the state to prosecute people for the new crime of enabling someone to drive while high on alcohol or other drugs.

The enabling provisions were contained in a bill that would impose new and tougher penalties for drunken driving. Much of the discussion in Tuesday's debate focused on how to handle cases in which someone is coerced into letting another person use a vehicle even though the person who wants the keys is intoxicated.

The bill calls for penalties up to a $1,000 fine and a year in prison for someone who intentionally allows another person who is intoxicated to operate a vehicle. If someone is killed or seriously hurt as a result, the penalty is bumped to two years and a $5,000 fine.

A House-passed version of the bill would put the burden of proof on a defendant to show he or she was forced to lend the vehicle, or did not know the person using it was intoxicated. The Senate's action — it passed its version of the bill 29-0 — effectively shifts the burden of proof back to the state, which would need to show there was no coercion in order for the enabling charge to stick.

Sen. Vincent Illuzzi, R-Essex-Orleans, who is also a prosecutor in Essex County, pushed his Senate colleagues not to soften the standard adopted by the House. He argued that it would be difficult for the state to prove an enabling charge if it were forced to prove a negative — that the defendant was not coerced into allowing use of a vehicle.

"It's very difficult to find witnesses who are both willing to cooperate with the prosecution and are in a position to be regarded as a reliable witness by a jury," Illuzzi said. The latter problem is that both the alleged enabler and the person later picked up for driving while intoxicated will have been drinking in many cases, he said.

Sen. Alice Nitka, D-Windsor and a member of the Judiciary Committee, which vetted and endorsed the Senate bill, said the panel had considered carefully the question of burden of proof on the coercion issue. She said a key concern for committee members is that "many women are intimidated by their partners" into allowing use of a vehicle.

In other cases, Nitka said, the person giving the OK to a driver who ends up charged with DUI may not know the person was over the legal limit of 0.08 percent blood-alcohol content.

She offered an example of a husband and wife working in their yard. "The fellow has had maybe a couple of beers, and he says 'I'm going to go down and get some gas for the lawn mower'." The wife may assent, not knowing that her husband, if stopped by a by a police officer, might be found over the limit for blood-alcohol content.

It's unclear if the House will concur with the Senate changes. If not, a conference committee would have to be appointed to work out differences, and time is drawing short. Legislative leaders say they hope to wrap up their 2011 session by this weekend.