The following is the floor report delivered by Representative Karen Dolan on H.410, which I sponsored and passed out of my committee on a unanimous vote.

H.410, as amended by your House Judiciary Committee, creates a standardized definition of recidivism in Vermont statute and directs the Vermont Statistical Analysis Center (SAC) to produce annual reports on key criminal justice system indicators. H.410 improves consistency in how Vermont measures recidivism and provides Vermont with clear, comprehensive data on trends in our criminal justice system.

Recidivism is the measure of when an individual convicted of a crime commits a new offense. Currently, the definition of recidivism in Vermont is outdated and arbitrary, focusing on a narrow section of individuals. Due to the limited scope of the current measure, data related to recidivism is not effectively used in Vermont criminal data analysis. H. 410, brought stakeholders together to revamp the definition of recidivism in order to make it relevant and usable in future studies and legislation related to criminal justice in Vermont.

H.410 also creates a new chapter in Title 13 entitled, Criminology Measures. This chapter establishes a number of annual reports which will be generated by the Vermont Statistical Analysis Center related to measures such as bail rates, recidivism rates, and arrest and conviction data. Some may remember the passage of S.14 in 2023 (now Act 40) which launched an initial criminal justice data report. With the success of that report, H.410 provides a long-term plan for maintaining related reports- this is critical for future legislatures to make data-driven decisions related to our criminal justice system.

Now I will provide a brief review of the sections of the bill. You can follow along starting on page 1241 of today’s calendar.

Sec. 1. Creates a new chapter in Title 13 establishing a statewide definition of recidivism and directing the Vermont Statistical Analysis Center (SAC) to produce annual reports on several criminal justice indicators.

Subsection 8121 Defines recidivism as a new criminal conviction following a prior conviction. The date of arraignment for the new offense is used as a proxy for when the offense occurred. The recidivism calculation period begins when an individual is released from incarceration or sentenced to a non-custodial sentence.

Subsection 8122 Requires Vermont’s SAC to submit annual reports by April 1st of each year to relevant legislative committees. The reports must include:

• Bail rates and information on individuals held pretrial in Vermont correctional facilities.
  
• Recidivism rates calculated over three- and five-year periods.
  
• Arrests and clearance rates organized by offense type using National Incident-Based Reporting System categories.
  
• Information on the 20 crimes with the highest number of convictions, including sentencing data and total years of probation and incarceration imposed.
  
• This section also requires inclusion of demographic information, when available, and directs state and local agencies to provide data necessary for SAC to complete the reports.

Sec. 2. Repeals the current statutory definition of recidivism used by the Department of Corrections, as the definition is now established in Title 13. This change was reviewed and supported by the House Corrections and Institutions Committee.

Sec. 3. Removes references to the prior recidivism definition and related reporting requirements that are replaced by the new definition and reporting structure in Title 13.

Sec. 4. Appropriates a total of $25,000 from the General Fund in fiscal year 2027 to support the preparation of the annual reports required in the bill. 

Sec. 5. States that H.410 shall take effect on July 1, 2026.

The Committee heard testimony from the following: 

• Office of Legislative Counsel
• Director of Policy and Legislative Affairs, Attorney General’s Office
• General Counsel, Governor’s Office
• Director of Research, Crime Research Group (VT’s current SAC)
• Director of Research and Data Analytics, Department of Corrections
• Executive Director of Policy and Strategic Initiatives, Department of Corrections
• Legislative Attorney, Department of State’s Attorneys and Sheriffs
• Defender General, Defender General’s Office
• Deputy Defender General and Chief Juvenile Defender
• Executive Director, Crime Research Group
• Deputy Division Director, State Impacts, Council of State Governments Justice Center
• Chief Superior Judge, Vermont Judiciary
• House Corrections and Institutions also reviewed the bill

In summary, H.410, as amended by House Judiciary, establishes consistent statewide measures for recidivism and other criminal justice indicators so that Vermont has clearer, more reliable information to inform policy decisions as we continue our goals to address public safety and criminal justice reform. With the long-term vision of H.410, Vermont will have a solid foundation to build on these efforts. 

H.410 as amended, passed out on a vote of 10-0-1 and your Committee on Judiciary asks for your support.

The following is the floor report delivered by Representative Ian Goodnow on H.642, which I sponsored and was voted out of my committee on a unanimous vote.

Before the chamber is House Judiciary Committee’s strike-all amendment to H.642, entitled “An act relating to youthful offender proceedings.” Madame Speaker, this bill proposes to make changes to two existing statutes related to the youthful offender laws in Vermont to both improve how revocation of the youthful offender status occurs and allow for more victim input in the process. 

By way of background, the Youthful Offender system allows the transfer of jurisdiction from the Criminal Division to the Family Division for cases involving youth aged 14 to 21 for certain alleged criminal offenses. This transfer of jurisdiction provides for a confidential process in the family court which is premised on the science related to adolescent brain development and data. The data tells us that when a youth’s case is prosecuted in the Criminal Division rather than in the family division, the outcomes as measured by recidivism are not good. H.642 deals primarily with the procedures related to what happens when an individual on youthful offender status  violates juvenile probation.  Specifically, what happens when there is a motion to revoke youthful offender status and send the youth to criminal court due to a probation violation. 

Moving on to the bill itself, Madame Speaker, Section 1 can be found on page ___ in today’s calendar. Section 1 proposes changes to 33 V.S.A. § 5285, and is related to  modifications or revocations of a youth’s juvenile probation. 

The first change to this section is to add a new subsection a(2) to 33 V.S.A. § 5285, which extends the jurisdiction of the family division beyond the youth’s 22nd birthday if there is a pending motion to revoke the youthful offender status. This extended jurisdiction would last either until the youth’s probation is revoked, or the youth is discharged from probation. This new provision addresses a serious issue that currently exists where youths have “timed out” of their juvenile probation because the youth turns 22 while there is a pending motion for revocation or modification. This change will allow for the youth to remain within the Family Court’s jurisdiction to either complete probation, or have their Youthful Offender status revoked and be transferred to criminal court or to the Department of Corrections’ custody..

Madame Speaker the second change in section one can be found on page ___ of todays calendar. Here we are still operating in 33 V.S.A. § 5285 related to motions for revocation of a youthful offender status. These proposed changes relate to how the court determines what to do once it’s ruled that there has been a violation of probation. The Court has multiple options as to what can happen once its made that ruling: it can continue the youth on probation with any modifications it feels are necessary, it can revoke the youth’s probation and transfer them to criminal court for sentencing, or it can revoke the probation and transfer the youth into the custody of DOC. 

H.642 proposes to provide a number of factors for the court to consider when deciding which of those outcomes to order. These can be found in the new proposed (c)(2) in 33 V.S.A. § 5285. The three factors proposed are 1) if public safety will be protected if the youth continues on probation 2) if the youth continues to be amenable to treatment as a youthful offender and 3) if there continues to be sufficient services to meet the youth’s treatment and rehabilitation needs. 

Further, H.642 clarifies that if a youth fails to appear at the probation revocation hearing, if good cause is not shown for why the youth failed to appear, the court may order an officer to pick up the youth and bring them to court. 

Moving on to Section 2 Madame speaker, H.642 proposes to make multiple changes to sections of 33 V.S.A. § 5288 relating to rights of victims in youthful offender proceedings. These changes can be found on page ___ of today’s calendar.  The primary change can be found in 33 V.S.A. § 5288 (a)(2), H.642 proposes to add language to allow victims to be present at the preliminary hearing to determine whether a youth should be considered for youthful offender status and, critically, to allow the victim to testify as to whether they believe youthful offender status to be appropriate for the youth. The further changes in 5288 align the language for court procedure to make clear the victim’s rights as it relates to youthful offender status. These changes are important, Madame Speaker, as a victim’s experience and ultimately the outcome of their case will be dramatically different depending on whether the youth is transferred to the youthful offender system or remains in the criminal court, and thus the victim’s voice should be heard and considered when the court makes that determination. 

The Youthful Offender System is an important tool in Vermont’s criminal justice system for young vermonters. H.642 will help to strengthen that system. 

The bill was reported favorably out of House Judiciary on a vote of 10-0-1 and the committee respectfully asks the House to join us in supporting its passage.

The following is the Floor Report delivered by Representative Angela Arsenault on H.606, which was passed out of my Committee on a split vote.

Madam Speaker, H.606 is a carefully-crafted public safety bill that proposes to address three specific firearms-related issues, mainly by relying on existing federal laws that have been upheld by numerous courts, including the United States Supreme Court. 

This bill carefully balances second amendment rights with the need to keep Vermonters safe. It helps improve Vermonters’ safety by keeping guns out of the hands of individuals who have been found by a court to be a danger of harm to themselves or others. It also mimics the existing federal prohibition on machine guns, which are not tools for hunting or self-defense. 

In short, this bill upholds the long-standing tradition of narrow, targeted, Constitutionally-sound restrictions on gun ownership in this country.

The text of the bill can be found on page TKTK of today’s House Calendar. Let us now walk through the bill. 

Section 1 amends Vermont’s existing grand larceny statute by adding theft of a firearm. This means that the theft of a firearm, regardless of the value of the firearm, would be a felony offense punishable by not more than 10 years in prison, a fine of not more than $5,000, or both. Typically, theft of objects or goods valued at less than $900 would be a misdemeanor charge. This change reflects the seriousness of the offense. 

The definition of “firearm” in this provision refers to 13 VSA § 4017, which expressly excludes antique firearms. This definition replaced a more expansive definition of “firearm” that was used in an earlier version of the bill – a change that was made at the request of gun-rights group the Vermont Federation of Sportsmen’s Clubs. 

Section 2 proposes several amendments to the existing Vermont statute that prohibits possession of firearms by persons convicted of certain violent crimes. Similar prohibitions exist in all 49 other states and under federal law. Vermont’s law was passed in 2015 and provides that possession of a firearm after being convicted of a violent crime is a misdemeanor subject to a maximum penalty of two years in prison. Section 2 proposes to increase the penalty to a 3-year felony if a person commits the crime for a second or subsequent time.

In addition to persons convicted of violent crimes, there are several other categories of persons who are prohibited from possessing firearms under both Vermont and federal law. Current Vermont law prohibits possession by fugitives from justice and persons subject to relief from abuse orders or orders against stalking. These persons are also prohibited from possessing firearms under federal law. At the request of the Department of States Attorneys and Sheriffs, Section 3 proposes to add to Vermont law another category of persons who are already excluded from firearms possession by federal law: persons who have been involuntarily committed by a court order because they were dangerous to themselves or others. Persons seeking voluntary mental health treatment will not be subject to this prohibition.

Federal law prohibits all persons who have been involuntarily committed from possessing firearms permanently, regardless of whether the commitment order is still in effect. However, Section 3 only prohibits possession by persons who are currently subject to the commitment or hospitalization order. Under the bill, when the commitment or hospitalization order ends, the state-level prohibition on firearm ownership ends. In addition, H.606 prohibits persons from possessing firearms if they were found not guilty by reason of insanity or incompetent to stand trial for certain serious offenses. Section 3 adds the same increased penalties for second or subsequent offenses that were added in Section 2.

This section also includes a pathway for individuals to petition the court for relief from firearms prohibition using the same process as individuals barred from firearms possession for mental illness under the federal statute which is spelled out in 13 VSA § 4825.

Section 4 prohibits the possession of machine guns under Vermont law. Federal law already prohibits possession of machine guns, so by making it a state crime Section 4 permits a Vermont state’s attorney to bring a charge for the offense in a Vermont state court. The bill defines “machine gun” in the same way it is defined under federal law, namely, a firearm that is capable of shooting more than one shot without manual reloading and with a single pull of the trigger. Included in this provision are the exceptions provided in federal law for machine guns that are registered under the National Firearms Registration and Transfer Record maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. 

And just like federal law, this section effectively prohibits devices that turn a semi-automatic weapon into a machine gun, including auto sears like “Glock switches.” Such devices are easy to manufacture or 3D print and can shoot up to 1200 rounds per minute. They are present in Vermont and have been recovered at crime scenes. Twenty-eight states already prohibit these, and gun manufacturer Glock supports their prohibition.  

Machine guns that are still lawful to possess under federal law, and would therefore still be lawful to possess in Vermont, are those lawfully owned prior to 1986, when the federal prohibition went into effect, and those possessed by a state or federal government agency.

Again, if you own a machine gun legally under federal law, you will still be able to legally own a machine gun in Vermont.

Finally, Section 5 provides that the bill takes effect on passage

The bill passed out of your House Judiciary on a vote of 6-5-0 and we encourage members to vote “YES” in favor of common sense public safety measures. 

The following is my floor report for H.744.

H.744 amends Rule 3 of the Vermont Rules of Criminal Procedure. This rule generally involves arrests without a warrant. It lists the types of offenses for which an arrest may be made without a warrant, including felonies, misdemeanors that a law enforcement officer witnesses, and some nonwitnessed misdemeanor offenses. Rule 3 also outlines procedures for the arresting officer to follow after the arrest. 

H.744 amends subsection (k) in Rule 3 related to temporary release. The language can be found on page 805 of today’s calendar. The provision requires the law enforcement officer making the arrest to contact the court to determine whether the alleged offender should be released or held. Often, this rule comes into play after hours when the court is closed. The arresting officer will contact an on-call judge or judicial officer in those situations. The arresting officer must provide the judicial officer with an affidavit or sworn statement, including information that allows the judicial officer to determine whether to release or hold the individual. 

Under the current rule, which the legislature passed in 2019, the arresting officer’s affidavit or sworn statement must indicate the crimes to be charged by the officer. This language is problematic and has led to the need for this amendment – an officer does not make charging decisions. It is the prosecutor who makes the charging decision.

H.744 fixes this problem by striking this sentence. In its place, the bill clarifies that the presiding judge for each court MAY require that prosecuting attorneys indicate the charge or charges that they intend to file. The presiding judge may also require the prosecuting attorney to request any conditions of release, bail, or orders to hold without bail. 

This additional clarifying provision codifies existing practice.

A bit more background is necessary related to this bill. Both the legislature and the courts have authority under the Vermont Constitution to amend judicial rules within the confines of separation of powers. The legislature generally cannot amend a court rule that involves an inherently judicial function, but Rule 3 is not such a rule.  Indeed, both the legislature and the court have amended Rule 3 multiple times over the years. In fact, it was an amendment to subsection (K) made by the legislature back in 2019 that H.744 is now revising. 

The judicial branch proposes rules through committees, including the Advisory Committee on Criminal Rules. 

That Committee has proposed an amendment to subsection (K) different than the language in H.744. The Advisory Committee’s proposal would have provided that the presiding judge SHALL require the affidavit or sworn statement to include the charge or charges that the prosecuting attorney intends to file.  H.744, again, provides that the presiding judge MAY have such a requirement. The court’s proposal was mandatory, H.744 is discretionary.

According to witness testimony, H.744’s approach codifies existing practice. H. 744 addresses and clarifies the issues that the Criminal Rules Committee sought to address in its proposed Rule 3 amendment. In contrast, the Advisory Committee’s proposal would substantially change existing practice, and would place a significant, and often unnecessary burden, on law enforcement and prosecuting attorneys.

Accordingly, the Judiciary Committee has exercised its authority to amend subsection (K) in H.744, thus clarifying the legislature’s previous problematic amendment to that provision.

Under H.744, individual presiding judges will continue to determine if and when they need direct input from prosecuting attorneys as opposed to relying solely on law enforcement in determining whether to release or hold an alleged offender. 

The committee vote was 11-0 and we ask for your support.

I have become a big fan of federalism. The American political system shares and divides power between our national government in Washington and our 50 state governments. 

Under the Tenth Amendment of the U.S. Constitution, powers that are not specifically delegated to the federal government are reserved to the states. Under this Amendment, Vermont and the other states have authority to manage fundamental issues such as education, health, and public safety. The federal government does have exclusive authority over some areas and states share some authority with the federal government as well. And the Supremacy Clause of the Constitution (Article VI, Clause 2) provides that federal laws take precedence over conflicting state laws.

These basic tenets of federalism and the intersection of these areas of authority are at issue in a bill that has already passed the Senate. The House Judiciary Committee will take it up soon.

Senate Bill 208 is an act relating to state standards for law enforcement identification.  It would require all local, state, and federal law enforcement officers to clearly identify themselves by name or badge number. It also prohibits masks or personal disguises for law enforcement, with exemptions for certain hazardous situations and deployments. 

In my view, Vermont has the authority under the Tenth Amendment to impose the requirements in this bill on not only state and local law enforcement, but also federal officers. Ensuring public safety has historically been and continues to be a function primarily left to the states. The federal government handles national security and interstate crimes, but the day-to-day responsibility for law enforcement falls to state, county, and municipal governments. 

Public safety is enhanced when we ensure transparency in law enforcement. With some limited exceptions, all law enforcement operating in Vermont should identify themselves. With such transparency, we can know if particular law enforcement officers are following the rule of law. The rule of law is a foundation of our democracy.

H.541, which originated in the House Judiciary Committee, grapples with the intersection of two other fundamental principles of our democracy: the right to vote without interference and the right to free political speech.  This bill focuses on election officials, voters, and activity around polling stations. Much of that activity will be political in nature and thus protected by the First Amendment. What was asked of the House Judiciary Committee was to craft a criminal statute, narrowly focused, which provides a way for the State to prosecute those who would interfere with State elections or voters while not infringing or chilling the protected First Amendment right to political speech. H.541 successfully strikes that careful balance.

H.541 provides that no one can intentionally or recklessly intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce others for the reason of obstructing their right to cast a vote or their right to choose who to vote for. It imposes possible criminal penalties for such interference. A leading constitutional scholar and the Deputy Solicitor General of the Vermont Attorney General’s office both testified before the Committee that the bill protects the right to vote in a manner that does not infringe on or chill free speech rights. The Vermont Secretary of State and town clerks also strongly supported the bill. H.541 passed the House on a unanimous voice vote and the Senate will take it up later in the session.

If you have any questions or input on these or other issues before the legislature, contact me at mlalonde@leg.state.vt.us.

The following is the Floor Report delivered by Representative Karen Dolan last Friday.

S.12, as amended by your House Judiciary Committee, takes key steps to modernize the system for criminal record clearance in Vermont. For those of you who were here last year, the contents will likely sound familiar as a majority of the bill is modeled after a bill passed in the House last year. Before getting into the details of the bill, I will offer some background information. 

The General Assembly has worked on policy regarding the expungement and sealing of Vermont criminal history records for several years to ensure that old records of nonviolent offenses do not unduly hinder Vermonters from obtaining jobs, housing, or educational opportunities once a sentence has been successfully completed. In policy development on this topic, the plan is to develop systems and practices that balance our goal of minimizing the collateral consequences of a criminal history record with our collective goal of ensuring public safety and minimizing the impact on victims. 

Currently, Vermont employs a two-track system for expunging and sealing criminal history records. I’ll take a moment to outline the difference in these two terms, which can have different meanings across states. In Vermont, expungement refers to the deletion of a record and sealing refers to the closing of a file to general access. In current law, whether criminal records are eligible for expungement or sealing is determined by the type of offense, the length of time since the person completed the sentence, and whether the court finds that expungement or sealing the record “serves the interests of justice,” among other factors. The current system is overly complex, the result of years of amendments and a piecemeal approach to the issue and therefore is poised for clarification as proposed in the bill before you.

S.12 builds on recommendations proposed during prior legislative sessions, as well as those from the 2021-22 Joint Legislative Justice Oversight Committee, to develop an improved record clearance process. The bill moves Vermont from a two-track record clearance system toward a one-track sealing process. 

Record clearance is an important part of our criminal justice system as it addresses significant barriers that exist for those who have been sentenced, specifically related to housing, employment and educational access. A study in Michigan showed that people whose records were cleared saw an average of 25% increase in income within two years of clearance. In our current employment environment, individuals with long- completed criminal sentences are finding it hard to find jobs and housing. Three social factors that are correlated with the commission of crimes are unemployment or unstable employment, lack of support or inclusion in a family, and engagement in a community. When people have old, irrelevant records, this can prevent them from finding housing and jobs, and exclude them from communities. We want to prevent this type of situation as it is counterproductive to our current public safety concern. 

When discussing our criminal justice system it is always important to discuss racial disparities. A 2022 study by the Council of State Governments showed that Black and Brown Vermonters are 350% more likely to be charged with a misdemeanor, 600% more likely to be charged with a felony, and 1400% more likely to be charged with a felony drug crime, despite no difference in drug use compared to White Vermonters. While we are considering measures to prevent these disparities, it is important for us to also address the harmful reality that currently Black and Brown Vermonters disproportionately have criminal records in our state. Record clearance is one tool we can use to mitigate this disparity post conviction. 

While the evidence in support of record clearance is significant, there are different schools of thought in regards to the type of process used. As shared earlier, Vermont currently has a two-track system involving both sealing and expungement. S.12 moves the majority of the record clearance process to sealing with a few carve outs remaining for expungement. 

Testimony shared in committee revealed some concerns around complete record deletion such as that found in expungement. Witnesses discussed the value records can hold for future cases. Even if old records are no longer serving as predictors of future crime, witnesses shared that these records can offer criminal justice purposes including impeachment considerations and prosecutorial discovery needs. 

Additional witnesses shared the relevance records can provide for the hiring and oversight of law enforcement. S.12 moves toward a sealing regime, in order to meet the goals of record clearance while also creating space to address this and other concerns. The streamlined process proposed also addresses system inefficiencies identified by witnesses. With a more efficient sealing regime, the expectation is that there will be increased confidence in the record clearance process and create new opportunities to strengthen the system in the future.

In determining the qualifying crimes for record clearance, S.12 followed the lead of last year’s legislation and referred to the list recommended by the 2021-22 Joint Legislative Justice Oversight Committee. Many of the expanded qualifying offenses included in S.12 have been considered by the legislature in previous sessions and were originally proposed to provide pathways forward for Vermonters in recovery from substance use disorder, following justice system involvement. As will be shared in the bill section overview, the list of qualifying crimes consists of primarily misdemeanors and a limited number of non-violent felonies. 

Now, I will turn to reviewing S.12 as amended by House Judiciary. For those following along, you can find House Judiciary’s strike-all amendment to S.12 on page XXXX in yesterday’s House Calendar.

Section 1:

As an overview, this section amends the chapter adopted by the General Assembly in 2012 that sets forth the process for a person to petition to have a criminal history record sealed or expunged.  In general, this section moves from a complex system of sealing and expungement to one of sealing in most instances, with an expanded list of qualifying crimes, and limited access to sealed records for certain entities that require such records for criminal justice purposes. 

Subsection 7601 is the DEFINITIONS section

•  The definitions of “court” and “criminal history record” remain as is in current law. 
• The definition of “predicate offense” is removed as it is no longer relevant 
•  “Qualifying crime” is updated to include:

(A)  all misdemeanor offenses EXCEPT those listed and

(B)  ONLY the specific list of felonies included

I will spare the body of reading the full language of qualifying crimes, but I will refer folks to the list in yesterday’s calendar on pages XXXXX related to the listed offenses. In general, the misdemeanors that are excluded include listed crimes and those related to domestic and sexual violence. And for felonies, the included list is specific to non-violent and property-related offenses.

§ 7602. 

Sets forth the process for a person to petition for the sealing of a criminal history record if the offense is no longer a crime or if it is a “qualifying offense.”

It clarifies that whichever office prosecuted the offense resulting in the conviction, the State’s Attorney or Attorney General, will be the respondent in the matter unless the prosecuting office authorizes the other to act as the respondent.

Under this section, the court shall grant the order without a hearing if the petitioner and the respondent stipulate to the sealing.

It is also made clear that the process is not available to an individual who is the holder of a commercial driver’s license or commercial driver’s permit seeking to seal a record of a conviction for an offense committed in a motor vehicle.

Next, this subsection outlines the conditions that need to be met in order for the court to grant a petition of sealing for each type of qualifying offense.

For Offenses that are no longer prohibited by law, those conditions include:

(1)  The petitioner has completed any sentence or supervision for the offense.

(2)  Any restitution and surcharges ordered by the court have been paid in full, provided that payment of surcharges shall not be required if the surcharges have been waived by the court.

For Qualifying misdemeanors, those conditions include:

(1)  At least three years have elapsed since the date on which the person completed the terms and conditions of the sentence.

(2)  Any restitution and surcharges ordered by the court for any crime of which the person has been convicted has been paid in full, provided that payment of surcharges shall not be required if the surcharges have been waived by the court. 

(3)  The respondent has failed to show that sealing would be contrary to the interest of justice.

For qualifying felony offenses, those conditions include: 

(1)  At least seven years have elapsed since the date on which the person completed the terms and conditions of the sentence.

(2)  Any restitution and surcharges ordered by the court for any crime of which the person has been convicted has been paid in full, provided that payment of surcharges shall not be required if the surcharges have been waived by the court. 

(3)  The respondent has failed to show that sealing would be contrary to the interest of justice.

For Qualifying DUI misdemeanors, those conditions include:  

(1)  At least 10 years have elapsed since the date on which the person completed the terms and conditions of the sentence.

(2)  Any restitution and surcharges ordered by the court for any crime of which the person has been convicted has been paid in full, provided that payment of surcharges shall not be required if the surcharges have been waived by the court. 

(3) The person is not the holder of a commercial driver’s license or commercial driver’s permit.

(4)  The respondent has failed to show that sealing would be contrary to the interest of justice.

Lastly, this section clarifies that sealing a criminal history record related to a fish and wildlife offense does not void any fish and wildlife license suspension or revocation imposed pursuant to the accumulation of points related to the sealed offense.  Points accumulated by a person shall remain on the person’s license and, if applicable, completion of the remedial course shall be required.

§ 7603.  Outlines the procedure for granting a petition when a conviction does not occur.

In that case, unless either party objects in the interests of justice, the court shall issue an order sealing the criminal history record related to the citation or arrest of a person if the petitioner and respondent stipulate to the sealing or within 60 days after the final disposition of the case if:

(A)  the court does not make a determination of probable cause at the time of arraignment; 

(B)  the charge is dismissed before trial with or without prejudice; or

(C)  the defendant is acquitted of the charges.

If a party objects to sealing the record, the court will schedule a hearing to determine if sealing the record serves the interests of justice.

A person may file a petition with the court requesting sealing a criminal history record related to the citation or arrest of the person at any time. 

§ 7604.  

This section states that a court must wait to act on a petition for expungement if the person has another criminal offense pending.

§ 7605.  

States if a petition for sealing or expungement is denied, the petitioner must wait two years before filing again unless authorized by the court.

§ 7606.  

Retains the current law regarding the effect of expungement because there are still some areas of law, such as court diversion, where expungement is used. The House Committee on Judiciary added language to the statute to require a State entity that inquires about a person’s criminal history record is to advise the person of the person’s right not to disclose expunged records.

§ 7607 outlines the EFFECT OF SEALING

Except for certain circumstances where persons or entities are granted access to sealed records, a sealing order is legally effective immediately and the person whose record is sealed is to be treated in all respects as if the person had never been arrested, convicted, or sentenced for the offense.

In any application for employment, license, or civil right or privilege or in an appearance as a witness in any proceeding or hearing, a person may be required to answer questions about a previous criminal history record only with respect to arrests or convictions that have not been sealed. The House Committee on Judiciary added language to the statute to require that a State entity that inquires about a person’s criminal history record is to advise the person of the person’s right not to disclose sealed records.

Subsection (c) establishes who can use and under what circumstances a sealed record can be used.

If a party who has been granted authority to use a sealed criminal history record pursuant to the exceptions established in this subsection, wishes to use the record in a court proceeding, prior to any use of or reference to the record in open court or in a public filing, the party must notify the court of the party’s intent to do so. The court will determine whether the record may be used prior to its disclosure in the proceeding. If a party submits a filing that contains a sealed record or a reference to a sealed record, that filing must be filed under seal and remain under seal unless the court permits the use of the sealed record. This does not apply to a person using their own sealed record. Other entities will be able to access sealed records for specific purposes, including:

1. An entity or person may use in any litigation or claim arising out of the same incidence related to the record, including use of the record in reasonable anticipation of litigation.

2. A criminal justice agency as defined in 20 V.S.A. § 2056a and the Attorney General may use the sealed criminal history record for a criminal justice purposes 

3. A defendant may use a sealed criminal history record in the defendant’s criminal proceeding.

4. Use of a conviction for DUI I may be used as a predicate offense for a penalty enhancement for any subsequent offense.

5. A sealed record may be cited in a court order or decision.

6. A sealed record can be used for firearms background checks.

7. Prosecutors may use a sealed record to meet discovery requirements.

8. The person who is the subject of the record and the person’s attorney may use the record.

9. A law enforcement agency may use a sealed record when considering an applicant for a LEO position or an investigation into a current employee.

10. Persons or entities conducting research shall have access to a sealed criminal history record to carry out research in accordance with State law.

11. Information and materials gathered by the Department for Children and Families during a joint investigation with law enforcement are considered Department records that shall be maintained and may be utilized as prescribed by law and produced in response to a court order.

12. Information and materials gathered by Adult Protective Services during a joint investigation with law enforcement are considered Department records that shall be maintained and may be utilized as prescribed by law and produced in response to a court order.

The court is required to bar viewing of the sealed offense in any accessible database that it maintains. The case file remains publicly accessible until all charges on a docket have been sealed. When all charges on a docket have been sealed, the case file becomes exempt from public access.

When a sealing order is issued by the court, any person or entity, except the court, that possesses criminal history records must bar viewing of the sealed offense in any accessible database that it maintains or remove information pertaining to the sealed records from any publicly accessible database that the person or entity maintains, and clearly label the criminal history record as “SEALED.”

As currently happens, the court will keep an index of sealed cases.

§ 7608. VICTIMS

Current law requires the respondent to notify any known victim if a petition has been filed. The amendment adds e-mail as a method for contacting the victim.

§ 7609. EXPUNGEMENT OF CRIMINAL HISTORY RECORDS OF AN INDIVIDUAL 18–21 YEARS OF AGE

Allows a person who was 18–21 years of age at the time the person committed a qualifying crime to petition to seal the record after 30 days from the date the person completed the terms and conditions of the sentence for the conviction. The court shall seal the record if the following conditions are met:

(1) Any restitution and surcharges ordered by the court for any crime of which the person has been convicted has been paid in full, provided that payment of surcharges shall not be required if the surcharges have been waived by the court.

(2) The respondent has failed to show that sealing would be contrary to the interest of justice.

(Note: Current law allows this process, but the records are expunged.)

§ 7610. CRIMINAL HISTORY RECORD SEALING SPECIAL FUND

No changes.

§ 7611. UNAUTHORIZED DISCLOSURE

This section includes law enforcement officers in the list of people who are subject to a civil penalty for knowingly accessing or disclosing sealed criminal history record information without authorization. A violation is subject to a maximum civil penalty of $1,000.00.

Sec. 2. RIGHT TO NOT DISCLOSE EXPUNGED OR SEALED CRIMINAL

HISTORY RECORDS

Directs the Secretary of Administration to notify all State administrative entities and the Court Administrator to notify the Judicial Branch of their obligation to notify persons of the right not to disclose an expunged or a sealed record.

Sec. 3 DEFERRED SENTENCES

Currently, when a person successfully completes a deferred sentence, the criminal history record pertaining to the offense is expunged. The amendment substitutes sealing for expungement.

Sec. 4. APPLICATION TO DEFERRED SENTENCES

Sec. 3 of the act applies prospectively to deferred sentences issued on or after July 1, 2025.

Sec. 5. EXPUNGEMENT OF MUNICIPAL VIOLATION RECORDS

Expunges municipal violations two years after satisfaction of the judgment, provided the person has not received any additional municipal violations.

This section is modeled after a similar provision enacted in 2021 regarding traffic violations and will apply to municipal violations that occur on and after July 1, 2025.

Sec. 6. EXPUNGEMENT OF TRAFFIC VIOLATION RECORDS

Amends the previously adopted statute requiring expungement of traffic violations to clarify the implementation date.

Sec. 7. EFFECTIVE DATE – July 1, 2025.

IN COMMITTEE WE HEARD FROM a wide range of  WITNESSES, over 25 individuals that I will share:

• President, Vermont Sheriffs’ Association
• Family Services Division Director of Policy & Planning, Department for Children and Families, Family Services Division
• General Counsel, Office of Professional Regulation, Secretary of State’s Office
• Court Administrator, Vermont Judiciary
• Director of Policy and Legislative Affairs, Attorney General’s Office
• Director, Court Diversion and Pre-Trial Services
• Director, Adult Protective Services Division, Department of Disabilities, Aging and Disabilities
• Deputy Secretary of State
• General Counsel, Department of Public Safety
• Director of Research, Crime Research Group
• General Counsel, Vermont Department of Health
• Consultant from Kaye Consulting
• Vermont State Archivist and Chief Records Officer
• Legislative Attorney, Vermont Department of State’s Attorneys and Sheriffs
• General Counsel, Department for Children and Families
• Deputy Defender General and Chief Juvenile Defender, Defender General’s Office
• Executive Director, Center for Crime Victim Services
• Vice President of Vermont Association of Chiefs of Police
• Deputy Commissioner, Department of Motor Vehicles
• General Counsel, Department of Disabilities, Aging and Independent Living
• EMS Programs Administrator, Vermont Department of Health
• Director, Vermont Crime Information Center, Department of Public Safety
• Executive Director, Crime Research Group
• Founder, MadFreedom
• Chief Superior Judge, Vermont Judiciary

Madame Speaker,

The thoughtful and balanced record clearance approach established in S.12, establishes a modernized framework for Vermont and creates a clear path for further reforms as progress is achieved. S.12 offers a solid foundation for future considerations such as petitionless sealing, qualifying crime expansion and the ideal balance of sealing and expungement systems. I look forward to these future discussions in following years.

S.12 as amended by House Judiciary passed out favorably with a vote of 11-0-0 and we ask that you join us in our support by voting yes.