 Any more discussion around H-237, the saliva bill as we've been calling it. And then we're probably going to come to a vote. So, it would be the time to ask any last questions or bring any thoughts forward that you haven't already. As long as it's not a tweet to have his vote. All right. Good luck. Yeah. So, we're just saying we're sort of doing final committee discussion around the saliva bill before we come to a vote. That's just here. I think others will be here to vote later, so we're going to hold the vote open for them. So, anybody have any discussion about this? Do you want to? No. Go ahead. No, go ahead. Well, I was going to say, I appreciate the chance that we did a dive, actually. You know, honestly, deeper into this bill, I thought that we would, and it was good to get a perspective. And quite honestly, being one that, even as a public defender and one that, you know, had great calls about, you know, adding this into the arsenal, so to speak. From a defense perspective, I actually think this bill actually helps, instead of her protections for folks, a couple reasons why. One, obviously it's a preliminary test by making it clear that, you know, that's not evidentiary, can be used against someone for not using it. But more significantly, is actually when then, even if you can then get the probable cause and bring someone back to the barracks and do the evidentiary saliva, because of one, at least what we heard from all sides, is that is actually good evidence and, you know, the work that's been in the lab is stronger. But more significantly, because of that, I think it actually provides greater save cards for those. And again, because right now, as it stands, in order to get convictions, I mean, we are having to utilize the DRE. And the reality is the DRE is only as good as the DRE. If you look at, you know, their various, you know, each one's DRE has to do so many tests per year and they look at, you know, like accuracy and accuracy. And I remember the last, the last report I saw in the fall, I mean, they range from our DREs from like 70% accurate to like a 98, 100% accurate. But the point of the matter is, you know, right now we're relying on this DRE that you might get it wrong, you know, I mean, not saying they would, but they could. And as we even heard from Tom Anderson, you know, we went to the lab and it came back. I know that person was negative. I mean, it's very hard to see they would actually proceed with that case then, because right now, you know, and we also learned they keep that evidence long enough so that way the defense could use it if needed. And so in all of those reasons, and also because I think it will be highly mitigated and I also trust our attorneys to make sure that if it's bad evidence, it's going to stay out, that I can support this bill. So, sorry, there's a long line. This is about the time for our work. So, Janssen, I'm glad you're concerned about the inaccuracies of DREs. I'd like to know why you're not concerned about the inaccuracies of saliva testing. Well, because not on the initial one, but at least what we heard from others, from those who testified on both sides of the equation, there wasn't any testimony with respect to the evidentiary test, you know, that goes to the lab and is tested, that, you know, that, you know, those parts are more accurate. And so my point is I believe that right now that at least provides on the evidence that can even be exculpatory evidence now for defendants that otherwise wouldn't have that opportunity under our current scheme of really having to rely solely on the DRE. So, my understanding from all of the testimony that we heard is both tests only are accurate at detecting presence of drugs. Not the second one, yes, deals with levels, but if you look at the research, it will say that they can't find any correlation between those levels, at least for THC and the drug itself. Which is one reason that, again, I feel strongly that we shouldn't put an unreliable drug into the, that we can't test into the mix. Because of exactly the concerns that you raise of using unreliable DRE stuff. In fact, I would say that DREs have a higher accuracy rate than either of the two saliva tests. And I hope you guys have looked at some of the research related to the tests. Again, I'm happy to share NIFA, the highways, but these are not like crazy liberal organizations. Okay, I just want to try to understand, are you saying that the research there is saying there's not a proven correlation between a certain amount of drug and impairment? Is that the, yeah. In fact, in both ways. So one concern we have were people eating marijuana. And clinical chemistry in 2014 talks about the extensive storage and prolonged release of how this drug stays in people's plasma and blood. So that basically, we can't, okay, here, let's say. I can come back with a quote about this. But basically, we can't tell at all either if people are impaired or not based on their level. A lot of it depends on a variety of different factors. And so the fact that we don't have any, NIFA does not determine it accurate enough at this point to make recommendations, we're messing with people's liberty. And I think it's wrong. And I cannot support this bill. I will try to add amendments to less than the harm. But it's not something to be taken lightly. With science that we wish were further along than it is, it's unconscionable to me. I think as I've heard you talk about what are your objections. And I keep hearing that your concern is, and help me out if I'm wrong here, but that the tests are not indicating impairment. And I think that's absolutely true. And that's the way we want it to be in this law. We're unlike Colorado and maybe other states where they have set a per se limit for THC to say, if you have 15 nanograms or whatever it is, you're determined just like we do with alcohol to be involved. I don't think that makes sense. And I think that NHTSA study is really largely speaking about that specifically. It's the one I'm thinking of. And we're trying to say that connecting the fact that there is a drug in your system could be an important piece of evidence in determining whether someone is impaired by a substance. Because that's what we have to prove in this state, that you're impaired by alcohol or drugs or a combination of those things. And that we're trying to provide a way for law enforcement to have another piece of the evidence in making that. So, Chip, I understand that the Transportation Committee, maybe I'm wrong, heard from Dr. Marilyn Hustes. The former head of the chemistry and drug metabolism section of the National Institute on Drug Abuse. And she said on NPR in 2016, I have not heard her testimony. Marijuana isn't like the height of your intoxication at the moment when your blood THC levels peak. And the high doesn't rise and fall uniformly based on how much THC leaves and enters your bodily fluids. It's proven you can still measure THC in the brain even though it's no longer measurable in the blood. Hustes found that THC rapidly clears out of the blood of occasional users within a couple of hours. You could have smoked a good amount, just waited two hours, still be pretty intoxicated, and yet passed the drug test for driving. If you eat the weed, your blood never carries that much THC, but daily users are different. These smokers build up so much THC in their body fat that it can continue leaching out for weeks after it was last smoked. Chronic frequent users will also have a constant, moderate level of blood THC even when they are not high. So, I had heard, not in that detail, but I heard that, of course. A couple of responses. One, if you're driving and you are impaired because THC in your blood, then under our laws you can be prosecuted for driving impaired. If you're driving with THC in your blood but your driving is not impaired, it doesn't matter when you took it or when you smoked it or whatever. The other thing is that we heard Dr. Kanti say that the levels, the rate at which it comes back into your blood from being stored in your fat are at a low enough level that it won't trigger a positive on the roadside test. Those are set at a number that would not be triggered by that kind of leaching back into your system. So, again, the first test is not admissible, but it kind of can draw you in to get more. The evidentiary one we would be making up for being considered. And I would love to make sure and hear that it's not prejudicial because I'm not convinced that it doesn't impact juries to get that information that may or may not be relevant. If somebody is on taking their medicine for a medical condition and even in conversations, people keep asking about how accurate is it, not about impairment. And so, throwing different drugs that people may or may not have in their saliva is, I'm worried, it's prejudicial. So, I mean, to me, of your concerns, I think that one, personally, just for me, rings the most true. My reading of the cases that I've been able to look at and thinking about it, it seems to me that it is a piece of evidence that can be useful in helping the court or jury determine that. But the court is, and no one else but the court can say this piece, we believe that this kind of evidence is more prejudicial than it is probative, or not. But we won't, I mean, we have to vote based on our thinking about that here, but we won't know how the courts are going to find that until it goes to court. So, why not wait and see how, you know, we're going to see a lot more evidence coming out of other states that are doing it. And just like people here have been nervous about trying new things to see what the impact is, why not wait? It's not cheap. It is not cheap. And frankly, besides the dollar amount, it comes at a cost of possibly having innocent people have more tangles with the law than makes sense. So, I would say there are, for me there are a couple of arguments about why we're going to wait. And one is that those, you know, as those cases go through in other states, we'll know how Michigan might feel about it, but we won't know how the Vermont Supreme Court will react to it probably because we have a more stringent search and seizure law in our Constitution than, right, in our Constitution than the U.S. Constitution. But the other thing is, you know, again, for me, if I think there's a way to provide better enforcement of impaired driving through the use of a statutory, you know, a new statute, a new test, a saliva test, that also seems to me to meet the legal hurdles that it needs to cross, then I would say why would I want to wait and not start, you know, have a way to enforce those laws and protect Vermonters, possibly protect Vermonters from impaired driving now? So what it sounded like was we are arresting people now for impaired driving, and frankly, the buzz that this is connected somehow to tax and regulate for marijuana, if you look at which drugs are the most dangerous on the road, marijuana alone is not even necessarily, put it this way, if it were, if I felt like we were putting more Vermonters at risk for safety versus we were putting more Vermonters at risk for losing their liberty, that would be different. But it does sound like, again, from, let me just see. When I looked at the dangers of the risk of driving, the Insurance Institute for Highway Safety, May 2015, adverse effects, okay, first of all, crash risk associated with specific amounts of marijuana unknown. Federal study found that unlike alcohol, drivers under the influence of marijuana tend to compensate for their impairment. They retain insight into performance and compensate where they can, like slowing down. The study done in the state of Washington, their Traffic Safety Commission in 2016, Driver Toxicology Testing Report, says, second to alcohol, marijuana has persisted as the dominant drug involved in fatal crashes over a decade. It goes on to say, while this report explains that trend and the characteristics of these drivers, this information is not sufficient to determine if marijuana directly contributed to the causes of these crashes. There's another one from the Highway Safety folks that says, when you compensate for other factors, they can't necessarily make the connection. So again, we're taking away something from people. Vermont Supreme Court is, you're right, they're very protective. They don't allow lie detector tests, and I'm not sure why we think this is going to help anyone. Thank you very much. Yeah, I'll defer. If I can, I'll take my part, but I think I don't want you to lose whatever thought you just answered. Thank you. I'll defer to you. Rachel, you know, I've heard you for the last week or so talk about lie detector tests as some sort of quality thing here. I believe that lie detector tests are not admissible in court because of the high operator error in them. It has nothing to do with, you know, is it good or bad or indifferent. There is just so much variance because it's the operator of that polygraph machine that ultimately makes a determination of that person's own, the truth or not. Well, that's apples and oranges as far as I'm concerned. I did want to address some of those concerns from a race. Both respect to the concerns of if there's now also is going to chill individuals for getting the kind of proper treatment they need and use other drugs as prescribed. Or even the reality that people that are chronic users in marijuana would have more in their system or just be at a higher level than others. On the first point, we truly are on the burgeoning and a whole new world and how we're going to deal with issues of drug use. And even if we legalize drugs and then the balance of that is still safety. These are honestly the discussions we've had and it took years to get there what we had with alcohol. And again, just as you're completely allowed to use it, do what you want with it. But ultimately still, there is that safety component that you can use something even legal as long as it doesn't impair one's driving. And then going back to that too, then that's a reason why when I've watched videos of cases where someone was taken in for impaired driving by a drug, I mean, officers why ask? Are you on any prescription? Again, the reality is there so could be things that they're taking, even prescribed things that can't impair one's driving. And so just because you're prescribed something, it doesn't give you then that additional protection to then be able if it does impact your driving. And so on those things, and again, I think, because as I mean this to me well, I have no problem with the legalization of this drug and probably providing some other drugs too, but then you have the counterbalance, you know, the safety side. Legal is one thing, but if it's actually impairing one's the other. And then going back to again, going why the science is still evolving and develop, however, and I think you might be able to help me with this one, Gary. The thing is, chronic alcohol users are the same. You know, that you'll have chronic alcohol users that, of course, I know we don't have, you know, a number, but the point is they're stable at above the legal level. That's their normal. Yet, still through the development case on stuff, we realize despite that, there's still a risk to have those individuals on the road. So you'll still have people that even though that's their normal, will still get convicted of a DEWI. And again, that's, I mean, but again, but it took us a way to get there. And again, that, and I think anyone in that process said, well, then we're going to just get rid of alcohol. But I do think that, and again, maybe I do trust our courts more than me or should, but I trust that this office will get litigated in a workout. But I don't think doing nothing and potentially putting a greater risk on a road is worth it. And so that's why I will support this bill. I just want to, I mean, we're just having a kind of a final discussion on the quarterly bill before we vote this afternoon. So I'm going to ask Barbara to actually respond to it and see if you have any discussion you want to bring to us. Barbara, did you want to respond? I have no disagreement with anyone about people driving that are impaired. I don't want people driving that are impaired. We don't want to, though, use wishful, scientifically weak tasks to feel good about, oh, we did something. Because frankly, I'm not convinced the roads will be safer. And we know that, again, people who may very well end up being innocent can end up having an invasive search, a violation of medical privacy, an unnecessary arrest, a tow fee for their car, you know how I feel about towing, potentially a night in jail while this is all going on. It's not nothing. It's not just, it's big stakes. And again, I do not want to be part of allowing something that the science isn't there. I do want you to hurt Vermonters in that way. I think that we can add more DREs cheaper and, you know, accomplish the same task in a better way. I just have a clarifying question and I apologize for coming in so late today. So are we voting on 2.1 or do we have an amended version? So we have the amended version. It's funny. We have 1.1 is the amended version. 2.1 was the one that provided transportation. Yeah. So ours is 1.1, 226. Do you have a copy of this? 226? Oh, 226. Sorry. I just don't see it posted to our committee page. I don't know what we're supposed to come in. Here, why don't I give you this? I'm sure we'll have some more. Thanks. I don't know if I have notes on that one, but if you want a clean copy. I'm sorry, I wasn't going to say anything more. But the concept that because of a test that identifies that there may be a drug on board, so to speak, that that's going to lead to there being innocent people arrested and going through all this, I absolutely disagree with it because the first question still is, what is the evidence of impairment? And that needs to be established for reasonable suspicion with specific and articulatable facts to show that the person is impaired by something. And this, yeah, this allows some connection to, you know, all right, there's an inference that would be involved after an evidentiary test that identifies the existence of the substance. But that has to be tied with all the other factors that has to be there for probable cause for arrest and guilt beyond a reasonable doubt to be prosecuted on these. I think there's plenty of protections in the system to keep this tool from being something that in and of itself is going to be leading to innocent people being arrested or jailed. After we met this morning, somebody reminded me that recently, and I was just looking up the year that happened, I think it was last year, there was a lawsuit in the city of Burlington because the officer thought he smelled marijuana, which again would probably be enough for the low bar that we're setting for having reasonable suspicion. It turned out there was no marijuana and the city of Burlington had to pay out a $85,000 damage claim or some things. I have not verified that amount. The officer was fired. And the Supreme Court's were wanting to smell a loan. And if there wasn't marijuana and this test could have shown that there was no marijuana, the person saw it. So let the defendant voluntarily agree to it? Well, the defendant roadside can decline to have that test. If there's enough other evidence for the officer to arrest the person and take him into the barracks, at that point, if he or she declines to take the evidentiary test, that can be held against and that can be evidence that they refuse to take the test. But not on the roadside. Roadside, they can say, no, thank you. I'm not going to give you my slide or my graph. And if you're young and of color, it's pretty scary right now to say no to an officer. I am aware of many young people in Burlington who feel like they are singled out for the kind of car they drive or whatever bumper stickers they have. It's going to hurt people that don't have the legal means to hire a good attorney to defend them. But I mean, this is not, it's, talk about geographic justice. I'm not happy. And I think we have at least representation of law enforcement in here. Somebody chime in. Like if I'm wrong, listen, Gary, I know it's been a while since you've done a stop, so things are a little different. But I mean, between my years in the mains of the office and even as a college attorney, I literally have watched hundreds of roadside stops for, mainly alcohol, but it's a couple of them have been drug-related. And literally every single stop, every single stop I've ever watched is, you know, everything happens, you know, at the door first, the interaction, enough to see that I'm a little concerned. Ask the person on the car. You do the fill sobriety tests at this time they've got the TC. And then that is when they ask for the breath test. And then it basically very well could refuse. Sometimes they do. But the point is probable cause has already been established by the time we get to that question anyway. And I mean, I don't see this playing out any differently. That people are going to use this as a way to get around all the steps to get to the PC and not just how to use this little fill sobriety swab as a way to bring people to the barracks. Again, I might be wrong, but I just, I've never seen that happen before. So I don't, and please, if someone has seen that happen another way, please speak up because I just haven't. Kind of like the deputy commissioner of DPS was sitting there to answer that question because my last 15 years in service, the closest I came to a roadside stop was getting the paper cut at my desk. Did you hear what I was saying? I'm sorry. Not just like high school. I wasn't paying attention. I was afraid of. Distracted. I was doing some research. No, so my, my question again, and this whole concept, obviously I, I still very much have equated this process to how we get to a preliminary breath test as well. But again, in my own practice as a defense attorney, every video I've ever watched, you know, when I'm representing one of those clients is, you know, you have the initial interaction at, at the door. Then, you know, there's enough then to ask them to get out of the car, go through the fill sobriety test. At that point is when the officer has now reached probable cause. Yet, that's when they ask for the breath sample. And obviously, as many people do, they can say no, but they've already established probable cause at that point. So they haven't even asked for that piece of evidence. So they've got, they've done all the things to reach probable cause. I would assume this is the same way this is going to work, or is there the potential that, that, that this evidence will be used as a way to get the probable cause and not have to worry about working, working to that process? I don't feel I'm qualified to answer that question. I haven't been on the road in a long time. So I could certainly dig around for an answer. I appreciate it. That just brings up the fact that we have put in the building the test alone. It's certainly not right. It doesn't just have probable cause. Selena, did you have any comment? It's a really little detailed question, but it was a question I had asked Trish Conti during her testimony last week about the methadone cutoff levels and how that compared to a like therapeutic usage, but we didn't think they would have got an answer on that. I don't remember seeing any. You reminded me of what specific area of the question was. So methadone is one of the substances that the roadside test detects and then we get the notes. I think I can see what the cutoff dosage was, but somebody was going to get back to that compared to just a therapeutic dose of methadone. Selena, I did a little research on it because I was concerned about it. I have a minor question. That works. I know Trish Conti is on vacation now. Right. Anyone? Wait, wait, wait. That's what Trish Conti said. I think the secretary said to us last week. Yes. It says, therapeutic levels from methadone are 300 to 1,000 in GML through narcotic stabilization and 50 to 100 pain. Blah blah blah. No, I have to go back and look and see how that relates. Does that provide the answer? It says that I have to provide the question. Well, I have the answer, but I have to find out the answer. No, Johnny Carson. Because he told us what level. So my understanding with methadone treatment is that there is a period, there can be a period where a person shouldn't be driving when they're even getting the therapeutic level of methadone. So again, it would be my feeling that if the person is driving impaired and it's because for whatever reason they have therapeutic methadone in their system and that's what's causing the impairment or if that's the only thing that's in the system that can be tied to impairment, it shouldn't matter whether it's the therapeutic amount or not, it's again where you're driving impaired. There are times in my understanding when somebody is having the medicated assisted treatment that people are not supposed to drive. And if they are driving at that point, it should be held to this particular violation. We did find the comparisons. Number, it detects for the two, depending on the roadside, implement it detects for 15 or 20 nanograms compared with a therapeutic level of 300 to 1,000 or 50 to 100. It's over-detected. Yeah, so it's much lower dosage that's detected. I guess to Martin's point, presently, setting aside a saliva test, if someone's driving is impaired and the officer pulls them over and continues to believe they have reason that they are impaired and the DRE is called or whatever, they will be prosecuted now from their driving. And I'm not sure if the addition of a saliva test changes that very much. I mean, it is that additional piece of evidence that now we know specifically what might have been causing impairment and the fact the existence of methadone in someone's system could be if that's the evidence your test could be brought up in court. But that case still revolves around improving the impairment. Great. No, I agree. We might have talked ourselves out for now. Yeah, I just want to talk about the science of it. It is a package. It's the art of science. Maybe there is very clear measurements of what's there and how much, but it's not the only thing. I think that Dr. Piner is very clear that the blood test or the saliva test from the lab is not an indication of impairment. It's a package of the whole thing. There are symptoms that they know you should show when they're part of the analysis based on the blood tests where that saliva test shows in the lab. A certain match should show some kind of symptoms. This is no different than what they do in medicine. When we go in and we've got a bunch of symptoms, they may not necessarily take a blood test, but they put together observations and combinations and decide what medicine you should get to fix it. It's an art. It's an art with science. The science, they can give you lots of tests and they can sit down and tell you exactly what's in your blood and all the other stuff, but they have to with part of a package. This is a part of a package of observations and all of the things that go on at the roadside and with the DRVA and with the officer through years of experience. They have the blood test or the saliva test that can go to a lab and the lab measures are actually there. I don't think there's anything wrong with the science. I'm not sure why it would be inaccurate. According to Marilyn Eustis and Dr. Conti, they did do a pilot and the reliability of the test and the Vermont study, the preliminary accuracy is greater than 90%, 93%, 95%, specificity was greater than 96%, 99% greater. I mean, this is the specificity for the drug. So I don't see where the science is not reliable. It sounds like the pilot we did in Vermont and one other pilots have been reliable. And I'm willing to look at it as a package that will evolve over time just like we did with the breathalyzer and with the alcohol stuff for the past 30, 40 years. It's maybe a first step, but I think that I think that for the safety of the public we're going to legalize this drug, among other drugs, because it may not even be the most prevalent drug. We have an opiate crisis right now that is just rampant. And I think we have to go and really think of the public safety issues. Some people will get off. We will have some people who will actually don't have a problem. It may be a validation of their innocence. That's good. But I support it. And I think that it's a first step and we can evolve with it over time. Coyo, your concerns are passionate. And I have to say that I think that's a good thing for us to have your concerns brought forth and to have you passionate about them because it forces me anyway to have to really think this through. Obviously at the end of the day we're going to disagree about where we come out on this, but I do want to say I appreciate you bringing those to us. I'm likely to bring forward some amendments. I'm hoping that when this bill is presented on the floor when people ask the question of accuracy it's answered that we're talking about accuracy of presence of drugs, not accuracy of people being not able to drive because I think people are very confused about that. And we owe it to our colleagues to share with them the facts and not give them false illusion. And I just feel like it's sort of not anyone's intention to do that, but we just need to make sure we're super clear. This does not show that somebody is incapable of, or incapacitate, I'm trying to think of the word I want, but it's some, and perhaps I just live in a district and work with people who are so disenfranchised at times like students, young, that it's hard to see the glass half-ball, but until I feel better about how people in our state get treated through our criminal justice system, I do not want to give more very low-level discretion to more people. Could you tell us more about any sort of amendments that you're sharing? Sure, yeah. I was sharing them this morning. So one suggestion I had was that we only put on the drugs that are illegal in Vermont, so that there's no confusion about people who are on methadone or taking their ADHD medication, et cetera. So just cocaine, heroin, take THC off because one marijuana is legal after July. And frankly, we know, I mean, again, I'm happy to share with folks the research on how inaccurate the THC testing is on either test. And it's going to hurt anyone. If you have constituents that are on medical marijuana, I suggest you talk to them because I've heard from some and they're not pleased about this. So that's one amendment. Another amendment is to wait until there is a test that has been approved by NHTSA and then implement it. And then, yeah, I rattled up with you this morning. So I don't know which ones. I mean, I was trying to get them built into the bill, but it was not successful. So I need to think about which ones I feel like will do some damage control from what my words are. So those would all come as floor? They'd come here, I guess so. I mean, I tried this morning. I'm not sure I'm able to get any support in here. I didn't sound like it. But it's just something that I, again, I can't look at myself if I don't fight this out all the way because I feel so strongly about the issues here. And I'm sorry we all don't agree. And I just want people to know it's not, you know, it's not the way to go against the committee on the floor, but this crosses the line for me that I can't be quiet about it. So, Jen? Yeah, the actual language says it's regulated drugs a little different from her. Right, because I, again, yeah, I just want to, like you would definitely have to say drugs that are legal in Vermont. Well, you can be taking Vicodin for pain and really don't belong behind the wheel. I'm not arguing with people. I'm not arguing either, but that's what the language says and I think that covers those seven drugs that we talked about including methadone. But the language wouldn't give you a free pass on that. Like I would get the amendment written away that it's more like I'm concerned about people that are on buprenorphine or methadone or suboxone, people that need to take their ADHD medicines. There are probably a bunch of other ones too that do not impair driving that the underlying condition is going to be a lot worse if somebody doesn't do it. People need their cars to get to work. Where, you know, the person on medical marijuana that I most recently spoke to said, hey, I'd be better off getting off medical marijuana and going back on heavier drugs because those I know when they're out of my system and I don't want to lose my license. And what am I supposed to say to those people? Yeah, sure. Go back on opioids. That's the right answer, you know? So it feels like... Answers don't drive impaired. But I'm not arguing about that. You can take your opioids at night and then drive the next day. You can't smoke your medical marijuana and then drive them the next week or legally drive and have any hope of not coming up positive on the town. But you have to have been driving folks here. Sorry. It's been a good discussion. We covered the ground. Unless someone has a new point of discussion, I think, and we will look forward to having Mr. Manon from Barbara and we'll be able to debate the specifics of the amendment when those are here in front of us. But at this point, we're posing in on two o'clock. I think we're going to need to come to a vote on this. I'd like to make the motion that we accept H237 version 1.1. One second. Coburn. Oh, God, I'm so in the fence. Can we get time to come back? Yes, give me a compact. That's fine. Dickinson? Yes. Jessa? Yes. Moris? Brachelson? No. Viennes? Yes. Wilhoit? Yes. Burdett? Conquest? Yes. Grad? Coburn. Did we hear that Kaia was coming back today? I have not heard that. I thought Maxine said that most likely not. Okay. So. My God. She voted before. Yeah. Which was no. Can I go on the record and say something? I'm sorry Maxine isn't here, but my views have nothing to do with me being on the board of the ACLU other than the fact that the last time we took up saliva, the ACLU was pleased with my concerns matching up with theirs. And so this is not me speaking as a ACLU board member. And I just want that clear. I'm still trying to digest this whole version. No. I'm fair to you. I'm going to respond. Yeah. We can hold the vote open. No. No. Okay. You would need to do a step on that. No, no, no. I don't want to turn in yet. Just let me know before we turn it in. That would be helpful. Just like that. Yeah. I've been really impressed. I would like to report the bill. I can't say that. I'm not sure. I'm going to move the microphone. Okay. Let me go ahead and have someone from our side. Well, we'll have somebody who's committed to putting our work on the bill, but the chair will decide. Okay. Report the bill on the bill. Okay. All right. We're going to move on. Is Sonia Gibson? Sure. Yeah, we're 12. We're early. We're a few months early. A couple months early. Our plan was to hear from her about 42. Sonia wanted to come right up. Well, I guess start somewhere, right? True. Have a seat. Go by so you can sit down. So I understand you're here to talk to us about each 42. Are you here from out of state, I understand? Yes. I'm here from California. Yay. So we'll ask, is that going to introduce yourself for the record of how it's based in the state, and then we can tell us why you're here from California? Great. Hi, everybody. My name is Sonia Gibson. I'm from a company called Encore Capital Group that's based in San Diego, but we are a licensed debt collector in the state as well as a debt purchaser. So Encore is first and foremost leading the industry of how debt collection should be done in the country as well as in Vermont. We purchased debt primarily credit card accounts from all the major banks and retailers and credit card companies. We're the preferred debt buyer because of our standards of practice and our consumer bill of rights. There are a multitude of things we do differently than others in the space. First and foremost, we don't charge any interest and fees. So the debt that we purchase, we purchase from the banks and the balance will never go up for our consumers. We do not resell the debt, which means the consumer will only know their bank and then they will know us and no other company they are on in time. We do not credit report on accounts where the consumer is making a payment, which is revolutionary I think in this space to say if someone's making an attempt to regain their financial footing and pay back their debt to not harm them through a negative credit report. We also have very lenient hardship policies. So someone who is going through hardship of job loss, medical situation, their active duty military, or their family members are, we do not collect from those consumers. Our discounts are on average about 40% off of the face value of the debt. And just last year in Vermont alone, we forgave $400,000 in debt to Vermont consumers through our discount program. So that's our company and summary. I want to talk a little about our three concerns of this bill 482, hospital 482, that are relevant to this particular committee. And the first one is a topic of statute of limitations. And the way the bill is drafted, so statute of limitations in Vermont and the vast majority of every other state that I know of, governs the timeline that you have to file a lawsuit. In Vermont right now, that timeline is six years for debt, consumer debt, which means that after the six year marker, as a creditor, as a debt collector, as a debt buyer, you cannot file a lawsuit on a consumer. What this bill seeks to do is it seeks to reduce that six year to a four year timeline, but that it expands the statute of limitation as a principle about litigation to be about all debt collection activities. The most important thing to know for Encore, and I think the industry as a whole, is that litigation is the very, very last resort for Encore. The vast majority, and I don't even know if I could say this publicly, but about 96% of our credit card outstanding obligations are resolved outside of the legal process. The consumer will never face a lawsuit. But there's going to be very unfortunate consequences that are, I think, unintentional by the advocates if this were to pass. When you take a timeline to litigate and you apply it to all debt collection activity and not allow debt collectors to contact their consumers after a four year timeline and offer payment plans and make arrangements with the consumer, you're creating a timeline that, which after that point, the debt is going to be explained. The debt will go away if a creditor is not able to contact their consumer after four years. Additionally, reducing that timeline for six to four years, you're going to give creditors less time to work on a payment plan with their consumers. The reality of that situation is two folds. The first is access to credit. When collectors cannot contact consumers after four years, they're not going to be able to collect. And the immediate outcome of that is that they're going to be less likely to lend and they're going to lend at higher interest rates. And study after study has shown that those that are impacted by this are going to be the low income consumers. They're the ones who have the lower credit scores. I have a myriad of studies that I'm happy to send to this committee. But everyone from the Harvard Kennedy School of Government, George Mason University, Philly Reserve, New York Federal Reserve, they've all done study after study to show that restricting debt collection, communication, and activity with consumers has shown to have negative consequences for low income consumers the most in their ability to gain credit and their ability to get good interest rates. Can I stop you just there for a couple of questions? Your reference to four years as opposed to the standard general statute of limitations, which is six. Is that in the civil action section of this, section six? The reason I ask is because the copy I have says three years and I'm just wondering is there a difference? So as far as I know there has been an updated draft I'm looking at from yesterday where it was originally three years and I think the proponents have changed it to four years as of yesterday. So we are talking about the same section. So my other question then is so the action must come in four years now of the date that the reason for the action happened, right? So if someone has made new payments and you all are paying for them over that time there would be no, you wouldn't have a reason for the act to bring the action. At some point they would say stop and you all want to pursue a civil action. We got two years from that. About four years started. Whenever that happened. As far as I'm... So I'm just trying to understand how this impinges on the things you've talked about here and the way you work with the consumer and so on. So as far as I know in Vermont which is unique to other states the timeline actually starts from the date of delinquency and not necessarily from the date of last payment like other states have. So to compare it to other states that the timeline starts going from the date of last payment is different in Vermont it is from the date of the default occurrence essentially. For us and you're getting to the second point I have of concern which is look normally the vast majority of the time we suggest a payment plan to our consumers. They say okay I can only do ten dollars a month to charge any interest to them so it doesn't hurt them to say to make ten dollar payments for a longer period of time. If this artificial timeline of four years is put in place for all creditors the first thing they're going to do is basically figure out how to collect before that timeline is up. And on cases and consumers where they otherwise wouldn't have litigated they're now going to litigate sooner or previously they wouldn't have litigated at all and now they're going to seek litigation at the four-year mark. They have no repercussion on this. There's no obligation for the consumer to pay them back because they're not able to contact them and talk to them. So is the delinquency to define somewhere that we all so if they're making ten dollar payments I guess I'm wondering is even though they're making those payments are they defined by statute or something else that says they're still delinquent or is it your decision about whether or not they're delinquent the case would go to the when the cause of the action occurred? My look of this we were having discussions over this during the summer when this bill was being discussed in a working group when we looked at Vermont it's defined to be the first occurrence of delinquency now I'd be very happy to say if you were wanting to change it to be about the last delinquency being the last payment that would certainly make an impact about your timeline being from the last delinquency not the first The policy stuff is not in our committee I'm wondering why you all the person holding the debt couldn't decide when they were delinquent and therefore you could say now they've stopped making those ten dollar payments they are delinquency from here on we have four years to make that Delinquency is defined in the on two levels the state defines when we start the clock but on a federal level it's considered a point of charge off so the banks after 180 days of non-payment which is about six months they charge off I might have missed this somewhere along the way you talked about the issues of this bill reducing it to four years if I heard you correctly so right now at the six year mark if people are still in your debt they've got a balance they start out with a thousand dollars just for a sake of argument six years later they still owe you 300 dollars at that point it can be charged off but my point my thought is at the six year mark do you folks move in and take more aggressive action whereas if it's reduced to four years will you step in at the four year mark and take more aggressive action to get these debts cleared off I think unfortunately that's going to be the consequences of this legislation is that creditors knowing yes when you know that the timeline to file a lawsuit is coming up you're going to be more incentivized unfortunately to file a lawsuit at that point in time before it expires because after you have your timeline to file a lawsuit expires you only have the ability to collect outside of a lawsuit and in this case the bill is doing both it's shortening that timeline to litigate plus it's saying you can't collect by any other means so I really see the outcome to be that creditors are going to rush to litigation they're going to flood the courts with more cases against consumers and people who otherwise would not have been litigated upon they in year two decided to do a four year payment plan those type of consumers may not be even offered that payment plan anymore because of the change of this bill so that's something that you gave this testimony and whatever testimony you're going to give us today tomorrow, yes I'm a follow up testimony but we've done we have to be done at 2.30 to make sure you have time to tell us the other areas of concern yes so the first one being the expungement of debt after four years, second being the reduction from six to four years and then I think our third one there's a component in the bill that discusses private right of action that consumers have for violations of the act and we don't have a problem with the private right of action component but the question is to change that to be per action and not per violation the way the legislation is phrased right now say I am a creditor who's used the wrong font and it's been found that the font I used is deceptive to a consumer which trust me there's every I know it's a little funny but it actually exists and there's class actions that happen on these type of nuances and so if I'm a creditor and I have thousands of letters with that font now I'm going to be liable for each of those letters that had the wrong font size so I would ask that it be changed to be per action and not per violation so that this isn't an ability for someone to have a payday from litigation of class action cases so where is that this is on and I'm working off of the latest version but it's at the top of page 5 of 18 um sorry 2461 B sub 2 sure um you know what I do have though on our old version page 4 line 4 I believe 2461 yes I think you're on the bottom of page 4 the old version um it says $500 for the first violation or $1,000 for each subsequent violation up to $5,000 um so I would recommend to change the violation to be action on both the times it appears or to really clearly specify that that's a cap maximum of $5,000 I think the way it reads now could be interpreted that it's going to violation will get $5,000 so we just want to make sure it's capped at $5,000 or that the violation has changed action either of those are options for us so our version just says $500 for the first or $1,000 for each subsequent so it sounds like there's additional language already um but it's the it's the just to clarify the word violation that you're concerned about or to turn that $5,000 to be a cap a maximum of $5,000 for a violation where does it say capped for violation it does not and so that's what we are recommending yeah can you explain again the difference between for action and for violation and the change so say in this case the font that we used was incorrect and we want to make sure that the penalty is for the act of for the action of using the wrong font if it's per violation it could be that every single letter we sent with that wrong font now is allowing the $1,000 uh penalty to be issued so at the end of a process whether it's a four year or six year at the end you're going to be writing off what remains or something to that effect in my person languages um no not actually so charge off happens charge off is one finite point in time before charge off happens before an account is delinquent and goes into collection so if an account doesn't pay for 180 days charge off is one finite point in time that it becomes delinquent it's written off by the banks consider a loss by the banks at which point either it goes to debt collections or debt buyer as a debt buyer or debt collector when you get to under current law when you get to the six year mark what that tells me is that I'm no longer allowed to file a lawsuit on that account but that account is still a collectable account it's a debt that's been granted you still have the ability to collect on that debt the debt doesn't just go away when the statute of limitations expires the way this bill is phrased though is that now you're taking the six and making it four years and not only can I no longer file a lawsuit but now you're carrying over that timeline and now I can't even contact the consumer even outside of the litigation process and so from the consumer point of view the advantage would be that if if they don't have this additional two years from their point of view would be harassment and from your point of view would be opportunity to collect is that I'm forgive my crude language but I'm just trying to write that I think what the proponents would say is that giving those two years back to the consumer means that they're no longer collected for old debt what I would counter that with is the reality is that now creditors are going to go to a lawsuit much sooner and not let it get to a point of year five or year six they're going to hurry up and litigate so that they don't lose the ability to collect right so that choice to litigate could happen at prior to the four year prior to the six year but isn't necessarily changing the calculus of the decision to litigate but rather the time I think that it does change for a creditor it does change because you're drawing a line in the sand that after four years you have no other remedy on a debt the debt will essentially go away because you can't contact the consumer but that same line would be drawn at six years no because under current law my line is only drawn for litigation but not for collections through a phone call or a payment plan option and that's the big distinction yeah I have a couple other questions over here I would say that those are really policy questions about when are going to be when groups up to years might be allowed to bring an action whether we should shorten that time the questions around whether it should be per violation or per action I think no no it's okay I'm just saying we'll make sure we're well I don't want to give you the false impression that we'll be weighing in probably on those questions I think down the hall they're going to be making those decisions for us and we're really very narrowly focused on any legal questions I think for I think it's important for this committee to know that the intention is to reduce litigation but I actually see this as flooding the courts with more litigation that will be the and I hate to say it but I've talked to a law firm and New England said this is great this will mean I'll get more cases to litigate on and I'll have to hire more attorneys and it's growth for my business and I don't think that's the outcome we want to see for consumers litigation is not a fun process for anyone it's expensive for creditors consumer does not have a good outcome from it we don't want to see that while we're not going to weigh in on that policy I don't think our committee would agree that we do not want to see more cases going in the courts just a quick follow-up I guess what percentage of people stop paying on their debt at that six-year mark I don't know exactly at the six-year mark I know that federally credit reporting timeline is seven years which means you could potentially have a situation where a creditor would credit report an account but not be able to call or collect from the consumer so as a whole for our company over the entire course of time everything that we purchase 80% of people never pay a single cent wow I'm shocked thank you any other questions of course thank you very much thank you good luck down the hall thank you so we are about to walk through as 221 passes in a judiciary committee it's true we don't have it yet however we think there certainly is a sense of urgency that I know number of us are hearing from our constituents I know the governor in his memo has asked to be passed certainly considered as soon as possible it's not unusual for us I think with the immigration bill we have looked at bills before we've actually had and I think that was the immigration bill last year and the past have taken joint testimony with senate judiciary or other committees in anticipation of a bill coming forward and I just said it would be would be helpful for us to start giving us you know giving this bill attention because it's it's an important issue Eric what version are we looking at it should be on version 2.1 senate judiciary strike off dated to February 23rd last Friday at 11.10 a.m. everybody have to correct them get a hard copy so good afternoon everybody feel like it's probably been only a week or so since I've been here but it feels like a month or two in my mind you've been busy right that's probably why Eric Fitzpatrick council here to walk the committee through S-221 an act ready to establish extreme risk protection orders as it was voted out of the senate judiciary committee last Friday the 23rd as you mentioned representative grad that's due to come up on the senate floor tomorrow so still to be debated over there that's also relevant to what I say here because you know it's always possible and it could be made on the floor and I can certainly follow up with the committee and let you know if something I testify to today turns out to be incomplete or inaccurate because it's made so I'll make sure I'll loop you in although I'm sure you'll hear if anyway but in case you don't I'll let you know but I think it'll also be telling you about what other states have done and where these bills come from I think that background is really helpful but yeah that's exactly how I was going to start so thanks for that segue so a minute or two of background S-221 as you can tell by the title is an extreme risk protection order bill sometimes called an ERPO ERPO some other states refer to them as GVROs gun violence restraining orders I think because of obviously the tragic events that have happened recently in Florida primarily averted in Vermont they've gotten a lot more media attention lately and sometimes in the media they've recently been referred to as red flag bills so sort of these different names that have been bouncing around for them but they all sort of describe the same general thing which is a court created process by which either a law enforcement officer or a prosecutor or state's cases family member household member can go into a court and file a petition and get an order for a person's firearms to be removed and for them to be prohibited from possessing firearms for a given period of time depends obviously on what state what that period of time is you'll see in this particular bill it's the sort of one sentence up to a 14 day period and the final order is up to 60 but it's interesting that the bill was introduced in the senate in December so long before any of the recent events had happened but the event the subject had obviously been purple around the legislature before then and it's based on, as I say there's a few other states it's a handful only at this point but the two state statutes that have been around the longest only allow law enforcement officers to file the petition there's also much more recently enacted statutes in California, Oregon, and Washington the California statute was initially in response to a voter initiative and those three permitted both law enforcement officers and household members to file the petition California, Washington, and Oregon whereas Indiana and Connecticut are law enforcement law enforcement officers and in some cases family members or household members it's sort of defined so in the particular bill, 221 is based quite strongly on the Oregon and Washington statutes as well as some parts of the Connecticut one because one of the features you'll notice in 221 is that only states attorneys in the Attorney General can file the petition which is the way that Indiana and Connecticut do it whereas the other three, as I mentioned are a little more broad substantively based on those but structurally in sort of the way I organized it it's in many ways also based on the current relief from abuse statute that we have in Vermont you remember there's an RFA process that similarly allows someone to go into court and there's an RTA which as we know in here means without notice to the defendant you go into the court and appear before the judge to file an affidavit no notice to the defendant and can still obtain an order essentially that protects the person who filed the petitioner from the defendant can include all sorts of aspects but that structure is what I base the structure of this on and so some of the language I have no doubt will seem familiar to you because you'll say oh isn't that in the RFA statute and if you think that the answer is probably yes because that's where I know a fair amount of it came from so that's kind of the background the big picture of how it works the kind of procedural structure of it is that also similar to the RFA statute is that there's a way that you can go in and as I just mentioned file this file a motion for an IRPO extreme risk protection order ex parte without notice to the defendant and and if the court grants that or even if the court doesn't there's also a procedure for it by which you can file the petition to have this order issued for a longer period of time the ex parte one only lasts for a maximum of 14 days period it expires basically unless the prosecutor dismisses it but conceivably the court could issue a permanent order at the end of that time that would then last for another 60 days so this interesting thing I base this on the way the RFA statute is even though you think about it chronologically in time the ex parte order would ordinarily come first but in the statute books for whatever reason the final order comes first and then you turn the next page and then the ex parte order is after that which I copied in this bill in retrospect if I had to do again which maybe I won't maybe maybe that order just in terms of logic because a lot of times that's what would happen first but that is the way the RFA statute was structured I model on that so that's sort of a long way of saying why don't we skip around in this bill a little bit rather than go right in order because it just sort of makes more sense to read it that way and Eric you mentioned 60 days and the bill is introduced like one year like our current RFA current final order it was a one year period it was amended to 60 days in committee thank you so just a couple on the couple of points about the definitions before and the couple preliminary before we get into it let's see that we have a definition of firearms here and I'm on oops sorry can I get the mic can I get the mic let's have to imagine let's have to go on well you guys all have copies anyway right let's use that well let me just say that first the definition of firearms is that's the same one remember a couple of years back the legislature passed essentially felons and possessions statute it's actually violent people who commit violent crimes are prohibited from possessing firearms that's that you had a definition of firearms and if that references a federal definition that's the same one that's used in this bill the bill also doesn't apply solely to firearms though it applies to explosives as well and explosives are also criminalized in Vermont law under title 13 and the definition of explosives is just taken from what already exists in the current explosives chapter and then dangerous weapon you'll see them on page 1 line 15 is defined to mean an explosive or a firearm so I just say that because as you know there are many other statutes that we deal with in here that use the term dangerous weapon and it usually means something much more broad than it does here when it's used in this context so we could bear that in mind so a couple of background points I'm going to do jurisdiction and venues so these proceedings like RFAs take place in the family division again I think the intent with that is that there's some familiarity there with this type of process because of the family divisions familiarity with not only RFAs but the ex parte orders that are issued are also happening in the family division so those one year those are actually I'll follow up on that with you but the initial ones are very short I think they're 72 hours and then they have to be a follow up one but I think they have to be renewed I'm not sure about that let me follow up on the precise date for that just a quick oh sorry just a quick grabbing question so the dangerous weapon definition is that really necessary or could you throughout this wherever you have dangerous weapons say explosive or firearm and the reason I ask isn't this causing some potential ambiguity among our various statutes that have dangerous weapons it means one thing here, it means something else somewhere else I'd say the answers to your questions are yes and no the first one we had done it that way I found that to be kind of bulky but no it's not uncommon for us to define one term differently in different places so it's not that it would be wrong to do it a different way but that's what we're wondering what the thinking was behind it yeah sure so just to be clear the emergency orders can be issued by any division any judge in any division but is it in permanent orders of this type could only be done in the family division okay so there's a venue provision as well you see that lines 13 to 15 so we say okay they're in the family division which family division which county has to be either where the law enforcement agency is located where the respondent resides that's the person who's the subject of the petition the one who owns the weapon or the county where the events giving rise to it occur so any one of those three places is where the petition can be filed so here's where I'm going to skip a little bit so you see the first section here 4053 is actually the final order right that's the one that happens after typically you think it would happen after the ex parte order although it is possible it's certainly that someone that a final order could be filed for even though an emergency one had never been requested so it's not necessary that it be done that there be an ex parte order in place for it to happen and all like we did I think they're thinking downstairs like these typically do happen in emergency or crisis situations so it would be oftentimes the case that there's an emergency request file so let's skip down to that and that starts on page 7 so this is the ex parte emergency relief provision right here this allows authorizes a state's attorney or the office of the AG to file a motion requesting that the court issue an extremist protection order ex parte do you see that on line three without notice to the respondent now it provides a law enforcement officer with the ability to notify the court that this ex parte order is being requested but the court still can't issue the order until after the motion is filed sort of envisioning there that there may be a law enforcement officer on the scene who may want to let the court know that this is happening and the reason for that is because the officer him or herself can't be the one who files the motion it's got to be the SA or the AG right so the officer presumably would be able to contact the SA or AG whoever is going to file the motion and then it can be done but there's also an ability to let the court know that's basically coming down the pike so there has to be an affidavit submitted this is also similar to the RFA there has to be an affidavit submitted with the motion right and the affidavit has to allege this is on line nine this is crucial that's allege that the respondent that's the person in possession or control of the weapon poses an imminent it's a crucial word there imminent and I point it out because it's not in the final order right and when you'll see when we get to the final order language there's not an imminency requirement I think that makes sense because the imminency is what makes it an extreme risk at that very sort of crisis moment you know the moment of you're asking the court to take an extraordinary step and issue this order without having given any notice for opportunity to be heard to the respondent and part of the justification for doing that is the imminency of the harm if the order is an issue so you have to allege that the respondent poses an imminent and extreme risk of causing harm to himself or herself or another person by purchasing possessing or receiving a dangerous weapon within the respondent's custody or control now I read the language through right there it appears many times in this bill so I figured at least once we should look at every word of it we'll have to do that every single time but that's sort of that's repeated quite frequently that's the standard that we're operating with I'm 221 so affidavit has to state specific facts supporting the allegations including the imminent danger so there has to be some specific facts in the affidavit that go to why this person poses an imminent danger and it also has to include any dangerous weapons that the person filing thinks that the respondent has so so that's what the affidavit has to show that's what the person filing has to assert how does the court grant well similar standard the court shall grant the motion issue the temporary expert they order again crucial language here in line 18 if it finds by a preponderance of the evidence so also very important to think about that because preponderance is different from the standard that's in the final order when you get to the final order you'll see that it's clear and convincing so there's a lower threshold at the first stage of this proceeding preponderance as you probably remember from other discussions that we've had in here is the standard used for in civil proceedings generally means more likely than not you know just the slightest bit of evidence that weighs in favor of one thing versus another more like 5149 sometimes referred to as as well 51% in one direction 49% in the other could be preponderance and is that what some of the other states like Connecticut for instance Connecticut actually uses a lower threshold at the at the exparte stage a probable cause threshold a lower and then uses the same clear and convincing one at the final order stage but there are other states that I want to say Oregon, Washington I think there are a couple other states use preponderance at both at both the initial exparte stage and at the final stage of the proceedings there's a mix the yeah I think that's easily done yeah so what was settled on here was preponderance the as introduced it was clear and convincing so that was another change that was made during the committee process so the court has to find by preponderance of the evidence more likely than not that at the time the order is requested that's also crucial too at the timing it's happening right at that moment is when the person has to be found to pose this harm and they pose an imminent and extreme risk of causing harm to himself etc I just said I wasn't going to read that language again so I'm not going to it's exactly the same as what I said earlier and then on top of page 8 now the petitioner that's who's ever filed for this motion right whether the state's attorney of the A.G. they have to cause a copy of it to be served to be responded so service is generally personal service by the sheriff so this ensures that the person who owns or possesses the weapons gets notice of the order and also in that order it's going to tell them it's going to have a hearing date this is also the way RFAs work so when you get that initial order which in this case will result in the person's firearms being removed think of how that occurs the initial order is issued that's when the firearms get removed in the first instance and the order is served on the person it's going to say you can appear in court on such and such a date where there will be a hearing where you can test this order and the hearing has to be not more than 14 days after the service so that goes to the this is only going to last 14 days at the most before they get into have an opportunity to get in court and argue that they should get their weapons back so here's another important language right here the subdivision 2A this is the so remember we just said ok there's an extreme risk of harm that that has to be shown that's the standard well it sort of raises the question what does extreme risk of harm mean so we're going to be very familiar for the courts and for some practitioners because this is almost identical one little change that was made but this is otherwise identical to the definition of danger of harm to self or others that's in the mental health statute so in the statute for involuntary commitment right where a person can be can be civilly committed involuntarily on a petition with some evidence from medical evidence that they on the basis of a mental illness they can be involuntarily hospitalized so the difference is that this does not require a mental illness do you know what I mean if you sort of think about the purpose behind this that makes sense because if you did require mental illness then you wouldn't need this at all because you already have that situation in place under the mental health commitment right you could commit somebody for that reason so this does not require that otherwise Roman numerals one through three the streamers could harm others may be shown by establishing that the respondent has inflicted or attempted to inflict bodily harm on another person by his or her threats or actions the respondent has these are the two new words these are the words that are different from the mental health statute intended to mental health statute is just that it has placed others in reasonable physical harm to themselves then just really felt that it was a better policy to make clear that the respondent is actually not doing that inadvertently but is actually tending to place others in fear of harm now it's shown though I think it's going to be circumstantial evidence that the person's past conduct or person's conduct with respect to other people procedurally it's got to be at this stage of the game it's got to be in the affidavit but you're right that as we said we saw earlier the affidavit's got to have specific facts that support the allegation of imminence so the officer asserting that either maybe they saw the person do this or that or another person told the officer that the person did A, B, or C those things could all be included in the affidavit and so intended intended to be again the facts of the game exactly I think you're 100% right the facts of the individual case which are and lastly you could show does that extend down through guard to letter B that's similar to the well it extends in the sense that that this is B is how you show extreme risk of harm to self so it extends from in the sense that that is what you have to show if you see if you go back up here to what you have to show in order to get this order you have to show that they pose a risk of harm to himself or herself or another person so what you've just identified is how you show it to self, to themselves when I just was talking about how you show it it is exactly cut and pasted from there yep and lastly there you could see that you could also demonstrate the risk of harm to others by showing that the person presented a danger to persons in his or her care somehow a danger to the persons that they had responsibility to care for so alright as I say so we're assuming that we're at the stage of the game now that the order has been issued because we just went through what the court has to find in order to issue the order what happens next well as I mentioned you see line 16 and 17 there has to be a hearing within 14 days to determine if the final extreme risk protection order should be issued I see there's sort of an exception there around 15 to 16 unless it's voluntarily dismissed so the thought there is that as we mentioned this is an imminent harm happening in a crisis situation and there's 14 days during which well a maximum of 14 days before this hearing is going to be held it's always it's certainly possible that during that period of time whatever crisis happened it's going to abate wherever the crisis situation had happened it may no longer be that the person poses this imminent threat of harm to Emma herself or to someone else so the the bill provides the prosecutor with the option of voluntarily dismissing it during that period you see it on page 9 now the prosecutor can voluntarily dismiss at any time prior to the hearing if they determine that the respondent no longer poses this extreme risk of harm to himself or herself so the idea there is that you don't want the certainly not be an efficient use of resources to require that this hearing occur you know the situation is resolved somehow so this allows for the case to be dismissed and if that happens you see line 629 if the prosecutor does voluntarily dismiss and the court vacates the temporary order and directs the person in possession of the weapon to return it to the respondent because presumably they're not a danger anymore just quickly go back there to the bottom of page 8 if it's not voluntarily dismissed this temporary order expires when the court grants or denies the final motion because you got this temporary order in place right and so let's say the hearing is set for 10 days later well at that moment 10 days later there's going to be a final hearing and a final order and they're either going to grant the petition or deny it right and if they if they deny it then it makes sense for that temporary order to go away right if they grant it well then they're issuing a final order for that under that circumstance even so at that moment temporary order goes away unless they voluntarily dismiss so what's in the order we've got what are the contents of this temporary order basically it says prohibits the person from purchasing possessing and receiving a dangerous weapon having a dangerous weapon within the person's custody or control for a period of up to 14 days so we just went to the class for that long has to be in writing signed by the judge include the sort of things you would think would be in their statement for the grounds and a lot of this is also from the RFA statute I should say some of this language you know names and address of the court where fines are made the sorts of big substantial information to have this crucial point finds 19 and 20 date and time of the hearing so that's got to be in the order so the person is informed when they're served with the order appears when I can show up and contest again has to be scheduled as soon as reasonably possible but in no event more than 14 days after the issuance of the order so this this language here is also very very similar to the RFA statute basically informing the person of his or her rights having their property taken stating how long it's going to be in effect that they have to turn their weapons over that they're not allowed to purchase or possess them weapons while the order is in effect the hearing is going to be held if you don't show up at the hearing judgment can be entered against you if you can talk to a lawyer no basic procedural protections for provided that you would notice of what's going on basically remember they haven't appeared right they weren't there at the sex part of the hearing so this is kind of may well be their first information that they have about what's happening now see if lines 18 through 20 on page 10 strike anybody else familiar court may issue an expert a extremist protection order by your telephone or reliable electronic means pursuant to the subdivision requested by the petitioner so as you know I know the committee spent a fair amount of time on this subject in another context in the RFA context interestingly enough over the last couple of weeks so that procedure essentially based on both I'm going to ask you what the number H-69? H-36 Thanks based on both H-36 and which is itself based on the warrant rule 41 of the Vermont Rules of Cruel Procedure that allows law enforcement officers to get a warrant electronically so that's where this language comes from where the concept comes from obviously modified a little bit to fit this situation but the idea behind this if you think about it it's sort of what the purpose of the concept is and this also I should mention was added in committee so this electronic issuance provision was not in the bill as introduced and I think the senate judiciary committee downstairs wanted to address after hearing testimony they realized that although the expert order had an ability to be quick in the sense that you don't have to provide notice to the person whose firearms it is this is the kind of thing which may well take place sort of at a crisis seat you're actually at the scene when you might most need to try and get an order as quickly as possible so this is an attempt to address that situation to create a procedure which I'm sure brings a bell for you guys that allows this to be done over the phone and through email while the officer is on the scene so that's the big picture the way it works is that there a request is made and I should say and as it says so right here well generally should be doing that remember these can only be requested by the SA or the AG right so the law enforcement officer can't him or herself make the request but it's envisioned that they will contact someone from the SA's office or the AG's office who would then get in touch with the court to get the order did you say other states do allow law enforcement or was it family members no no many do do allow law enforcement officers I think they also may have other prosecutors as well are included in most if not all of them I think so the SA or AG can ask the court for the issuance of one of these expert orders electronically and if that's the case then the judge tells the prosecutor that this can be done I think the thought here is I don't want to speak for Judge Gerson but I think part of the thought here is that there's going to be forms in place and you actually see language in the bill and that also is identical and actually just taken from the RFA statute in which a lot of these things are done by form so you don't have to be sitting there writing a three page memo there's boxes you can check and things like that to speed the process along so lines four and five the affidavit can be administered and sworn to over the telephone by the judge to the person who's calling it so they administer the oath over the phone they swear to the affidavit and then the affidavit and the motion are submitted electronically so it could be email it could be fax it could even be text whatever electronic method works under circumstances and then based on that the judge decides whether or not to grant the motion and issue the order now if the motion is granted the judge signs the order immediately then it's faced the exact date and time and transmits a copy to the person who filed for it by a reliable electronic so that means they email it back if you think about the way that can unfold quickly they email the order back and the law enforcement officer in this electronic issuance situation is probably envisioned to still be on the scene and remember they can serve they can then serve the order remove the person's weapons and then the law can happen in theory very very quickly after that happens and as you see they're in line 13 and 14 they have to serve it on the person who owns the weapons after that remember this has all been done at this point by these fax copies really none of these are the originals that have been sent to each other because when you email it to somebody they're downloading it themselves but the person who sent the email is the one who still has the original signed one for the next business day the person who filed for it has to file the original motion in affidavit remember they've got those original signed copies and the judge has to file the original signed order because the judge has the original that they signed and emailed back the clerk then enters the documents on the document immediately after and I just mentioned to forms have to be provided by the court administrator there's some boilerplate language that has to be included in the orders similar to what's in the RFA that the violation of the order is a crime subject to a fine of imprisonment in the affidavit as well that making a false statement in the affidavit is a crime so you said a couple of times that maybe I'm just missing it that's when with the order then the weapons are removed and where in here does it explain exactly that the weapons are removed as opposed to surrendered or is that not spelled out or am I missing I may have just missed it no we haven't got to there's a section in the bill on removal and how to get the weapons exactly but you're right that has to be explicitly in there thank you let's draw this section as we've been talking about the RFA orders in particular trying to figure out how do you overcome the hurdle of the fact that there has to be an electronic communication as I understand that email or fax or something that actually the writing of the affidavit has to be transmitted to the court is that true I think that the affidavit can be administered over the phone and then the yes and I think the you mean the original or the so what I have and maybe I misunderstood it that the court needs to receive some sort of written document electronically and then can administer the oath over the phone and the difficulty that comes up in some instances is that there's no cell reception there's no they don't have email there's not a way to get that written document to the court and my question is if none of these are originals anyway to start with why can't someone dictate over the phone the what's in there what's going to be in their affidavit what's in that request for the order and then swear to what they've just said or they swear ahead of time what they're about to say is is there a legal something a legal prevention to that and again I'm assuming there is and we can wait until you're up I think we addressed it in A3 but yeah you can't dictate the documents you have to create a record of what has been presented to us just stating it over the phone isn't going to create the record it's like search war do them electronically cannot do it electronically somebody is going to come to my house present me the affidavit complaint but we have to create the record what's necessary and by dictating it there will not be any the originals have to be filed in the next business we've got to the end of this expert process though a little point about the reasons if it's denied the court has to state the reason for the denial so that is actually it as far as the expert A process goes so I'm going to now move backward to forward because remember one of these expert A orders is issued unless they dismiss it there's got to be a final hearing within the next 14 days and I'm going to go a little bit more quickly through here because a lot of this is very similar to what we just looked at so if I'm skipping over something too quickly I'm just a little bit more stagnant but so now we're at the the 10 days or the 14 days is passing and during this time the state's attorney or the opposite of the attorney general was ever the prosecuting officer that may file this petition for the final order and again we see here that it prohibits the person from having a weapon same as the initial order did has to submit an affidavit same way the expert A one did now here's a difference that you see in subsection B top of page 3 set this provided in section 4054 which is the temporary expert A piece we just looked at court shall apparently only after notice to the respondent and hearing so in this case the person who owns the weapons has the opportunity to appear you see the person who's filing the prosecutor has the burden approved here by clear and convincing evidence so at the final hearing the burden is much higher on the state in order to have the because there's no longer presumably an imminency of danger there's no imminency at this point and this is going to be if granted it's in effect for a longer period of time up to 60 days it's going to be a temporary burden clear and convincing evidence which generally means a reasonably certain highly probable very different than more likely than not and again other states do this at this point some do some exactly I think clear and convincing at the final Connecticut California I think and there's a couple that are ponderants at the final as well there's an error on page 2 there when little ace on line 17 a state's attorney or the office of the attorney general now at which point does the attorney general step in is it that the state's attorney can't be you can't make contact with them or it's a case that the state's attorney general's staff is working on how does that all play out either of those could happen because you think of the first one that's happened in a time sensitive situation and then it might be the law enforcement officer presumably is at the scene and they're going to have to make a call as to who it is maybe it's because they know somebody's on staff maybe it's a presumption but I would think that if this bill passes the same way that a structure will build up behind it the same way it has with RFAs as people develop experience with it perhaps the courts or the state's attorneys and the AG designates people to receive them at certain times again I'm not trying to wet anybody but I think that sort of structure would be the way of working practice thank you yeah so that's to be noticed in the hearing now you see here so what is the petition after alleged here again that you don't see you won't see there's no word imminent here right after alleged the person poses an extreme risk remember in the ex parte it was imminent and extreme so no need for imminency at this point because at this point it's a full evidentiary hearing there's been notice provided time sensitive nature of the potential risk is supposedly in theory it's not there at this point but otherwise the standard is the same and it's exactly the same the only difference is imminency so they have to show that by possessing the weapon they're posing a danger a risk of harm to himself or others himself or herself or others and the definition of extreme risk of harm is the same we just hope that's identical affidavit similar is actually the same stuff has to be in there in fact supporting dangerous weapons there's an additional provision here that prior existing orders that may be have issued against the person these prevention orders or orders against stalking of sexual assault now again within 14 days after the petition they have to have a hearing and in this case notice of the hearing is served let's make sense remember because this is not an ex parte proceeding this is one in which the person is getting notice and lines 10 to 11 court grants the petition if it finds by clear and convincing evidence at the time of the hearing that's important because the finding here again has to be at the time that the hearing takes place so it's not enough that the person may have been in danger 7 days ago has to be at the time of the hearing and again that fits with this notion that the prosecutor has the option to dismiss if the person is no longer dangerous so if the court does make that finding you see on line 18 in line 17 and 18 the order will prohibit the person from having a weapon for up to 60 days so you've got a longer period now this is the 60 day period again the contents of the order has to be signed and include a statement for the grounds where filings are made how you appeal requirements for relinquishment represent along this is kind of what you were getting at earlier the cross references to the section that talks about what's supposed to happen with the actual weapon how to get relinquished description of how to request termination you'll see when we get to it the statute allows a person who's subject to one of these orders to file a motion to terminate it one time during any period that the order is in effect so if it's a 40 day order one time during the 40 day period the person who's subject to it can go into court and file a motion and say hey, terminate this order, I'm no longer dangerous well I was on line 79 there on page 5 but that's that's sort of a reference to the ability to make that we haven't actually got to the section that describes the motion so this is just saying it has to say right in it hey, you can file a motion to terminate and not only that, here's a form that you can file in it too and you see the subdivision out there this directs the statement directing law enforcement agency approved dealer or other person to release it to the owner upon expiration of the order so this is a statement that when the order expires the weapon has to be turned back over to the owner and this language again is identical this is the language that we saw in the expartee order that informs the person of his or her rights that's all exactly the same again about the reason for denial have to be in there as well we've seen subsection G there are no filing fee required for the petition so again the idea is to try and make these actions accessible for people court administrator has to make forms available and similar boilerplate bold language or block caps language I should say about violation of the order being criminal as well as it being criminal to make a false statement in the affidavit that's all in there so you can see there's a lot of similarity between the two yeah so in that statement it says but you can't you cannot possess or receive a dangerous weapon or try to do that and then that says or have a dangerous weapon in your custody or control is there why the need for in your custody control as opposed to possess what's the I think sometimes possession may be viewed as sort of a more immediate you know like you may you may have a weapon stored somewhere and then just I think the intent of the language is to cover that situation as well I think you're right you could argue that well it's not in your possession even if you have it you know stored in a different location but I think the language is intended to kind of sweep broadly just in case alright so we've gone through the temporary order and the final order so now we've got the situation where let's say the order has been issued the final order can be left for up to 60 days right brings you to the next question well what could what are things that could happen next we just mentioned termination right this is section 4055 on page 12 as I mentioned you can see in subsection A the person whose weapons these these are can file a motion to terminate one time during the effective period of the order that's line 18 now if the motion is filed the state still has the burden approved by clear and convincing evidence so in other words the court as you can see kind of at the bottom there the court has to grant the motion and terminate it in which case you know you return the weapons to the owner unless it makes this clear and convincing finding again that the respondent continues to pose an extreme risk of harm so if the court can't make that finding can't find that the person continues to pose this extreme risk of harm got to terminate the order give the weapons back and for the extreme for the extreme for that still go back to to to the things that are found that are able to be concluded for extreme lists that we see on page eight yeah exactly same stuff yep you got it exactly so that could only happen one time during the effective right? So the person can't keep filing these things over and over. It has to be a sort of a one-time option. But let's say that these orders can get renewed for additional periods of up to 60 days, right? So if the order, the first one expires at however many days, 45, and then they show another order for 45, the person could file a motion to terminate one time during that second period that's in effect as well. And that renewal authority is right here in subsection B. So the state's attorney of the AG can file a motion asking the court to renew one of these airport orders. That's line six issued under 4053. That's the final order section. So if a final order has been issued, there can be a motion to renew it for an additional period of up to 60 days, right? So you can have one another period. And you see that the language on line six and seven, you can renew an order issued under this section or section 4053. That provides the authority. There can be successive renewal motions. You know, in other words, it doesn't have to be just, you can renew it just once. If you renew the order under this section for another 60 days and that 60-day period gets to the end, the prosecutor can file a motion to renew again, provided that they can still, you know, meet the standard of showing that the person poses an extreme risk. Are the procedures and the time periods in here the same as working voluntary commitment? It's different. Yeah, you mean the voluntary mental health commitment? Yeah, yeah, they're different. But I don't, I don't know the exact numbers, but I can check them out for you. No, that's a good question. I hadn't tracked it for that reason specifically. It was based on this, this procedure is in the other state statutes that have these airport things and as Representative Grad was saying, has introduced it as a maximum of one year and the way the other states work was you could file once during the one year for a renewal. Sorry, for a motion to terminate once during the one year and then the state can file a motion to renew at the end of the period. So just based on that. How many times or how long can this process go on for? You know, indefinitely or, okay, until I should, unless until the person no longer, until, well, until the state's attorney lets it expire, which is possible. But if you mean can the state's attorney or attorney general continue to file them, assuming they think they can show that can meet that that dangerous standard? Yes, they can. And is there a point in time when, you know, the I guess for lack of better terminology, the proceedings stopped in the person that cannot no longer get his weapons welcome back. And he's added to the the firearms are restriction list. How does that all come into play? Or is that addressed here? It's not addressed here. It's a separate thing because if you mean the sort of the the people who are prohibited from buying the firearm we get you caught up in a background check that kind of thing. No, this proceeding is unrelated to that background check. So that that, you know, there's a list of, you know, reasons for which a person is prohibited by under federal law from possessing a firearm and that you have the Vermont state law in effect now as well because based on criminal convictions, but remember, there's no criminal conviction here. So, but if this again, if the person is found to be dangerous in possessing weapons, I would think that we'd want something in law that says enough's enough. You're on the you're on the restricted list from purchasing firearms anymore. And so that at least that part of it's taken care of. It virtually makes no sense to me not to, you know, follow through with the next logical step as far as I'm okay. The only sort of limitation your ability to do that is it's Congress who decides who's on that federally prohibited list. You know, you'd have to you could as a matter of state law say that anybody who's been subject to one of these orders is as prohibited from possessing a firearm, but but that background check that's conducted by federal firearms dealers is all done through, you know, the National Institutional Criminal Background Check system. It's all federal and, you know, the list of prohibited categories is all in federal law. So I don't think anyone subject to this particular order is going to come into any one of the categories that are on that federal list. These drop in the ball and I'm saying obviously the federal government. Thank you. Yeah. So the motion's got to be coming by an affidavit again. It is a tie. It has to be filed not more than 30 days and less than 14 days before the order expires just to know that there's notice for the person. Hey, that there's going to be a motion to renew file here. And otherwise, it's very similar. You see, it has to comply with the requirements of 4053. That's the final order that we just went through. Moving party. That's the state's attorney of the AG has the burden approved by clear and convincing evidence again. So notice they have to show by clear and convincing evidence. And the court has to find as you see here that the person that person continues to pose that's line 15 continues to pose an extreme risk of causing harm to him or herself or another person through their possession of a weapon. So again, it's just a renewal of the same process that we've already went through that to be hearing within 14 days. The person has to get notice of it. And all the stuff is similar. The decision has to be in writing in their forms for termination and renewal motions have to be provided by the court administrator. All that we've already went through. So we've gotten through. I think what I would describe as you know, the real both of the bill is we're going to go through a lot of procedure now on the one lap. There's a couple of other things we'll go through. I'm gonna probably pick it up even a little bit more now, but slow me down. So for this next section as a deal of service, all these orders that we're talking about have to be serviced, provide serve under the civil procedure. We've also talked about that in this committee, you know, quite a bit this session so that as we know, generally means personal service by the sheriff or law enforcement officer, right? No tacking it to the door. That's right. That would be right. You can't do that can't nail to the door. The this language is right out of the RFA statute. This says that this addresses the situation. Well, what if the person is in court when it happens, then you can deem the person served because they were actually there and heard the court issue the order, right? But nevertheless, they still have to be served and right. But the moment of service will happen right then. So they can't say, well, I wasn't served, so I didn't know about it, right? Now, this is also out of the RFA statute that says to do with having ERPO orders have to be served by law enforcement at the earliest possible time and take precedence over other summons as in orders. That's very, very similar languages in the RFA statute actually ought this entire subsection there about them being served to be served in a manner calculated to ensure safety of the parties and not include advanced notification to the respondent. So in other words, you know, if you're about to serve an order on the person saying you can't possess weapons, the idea is you don't want, you know, the law enforcement officer to call them up and say, hey, I'm coming to take your weapons. Can you meet me here or something like that? You know, it's the ideas that's calculated for that not to happen. And there's a return of service stating when it happened. Now, this this is consistent with what we looked at before. Remember in the final in the final final order and the renewal order situation, you know, the person has to have notice the expert day one, you know, they don't get noticed. It just it's just the person. So this clearly says if service of the notice of hearing cannot be made before the hearing, the court shall continue and extend the terms of the order upon request of the petitioner for such additional time as the deems necessary to achieve service. So you can't guarantee that the person's going to show, but you can guarantee that they get served at least with notice of the hearing. So they can't person. It's a matter of I think procedural fairness as well as making sure that the person can't later say, hey, no one ever told me that there was a hearing coming on. Right? You have to get notice of it whether they show up at the hearing is then up to them. But we set to be served by a law enforcement officer with an order saying this hearing is coming up. Procedure generally. So the RFA procedure, A, B, and C are all like that. Yep. D is the same as RFA. I believe so, but let me double check that. So generally speaking the rules for family proceedings are what govern what happens here. You'll see this also is from the RFA statute about the court administrator establishing procedures to ensure access after hours or on weekends and holidays. And that's consistent with what we were talking about is the electronic issuance of the order. All that language is right out of the RFA statute and subsection B there and as well as subsection C. So that's identical to how to ensure after hours access and how the court administrator can do that and make sure other courts know what's going on. So there's a criminal penalty section too which you may have referenced earlier because there's that big block capital language that has to be in the order saying hey if you violate this order it's a crime. Well this is the crime as well as the authority of law enforcement officers to enforce these orders. So the orders can be enforced by law enforcement and the person who intentionally violates one, let me see subsection B1 there, the intentionally committed action violation of it is a one-year misdemeanor although they intentionally about it after they've been served with notice of the content. So again notice before they're subject to these consequences. Subdivision 2 if you file a petition knowing that the information is false or with the intent to harass the person who owns the firearms that's also a one-year misdemeanor. Subsection C is very similar to the RFA, a violation of an RFA may be prosecuted as criminal contempt and the same thing is placed here as a potential remedy as well. We now get to relinquishment storage and we turn okay what happens and what do the person to do with the firearms once one of these orders is served. Now at this stage there's a distinction you know up until now we've always been talking about weapons right and by weapons we meant explosives and firearms right. In terms of storage and relinquishment there's a bifurcation that happens they're treated differently because you know you don't probably not good policy to be returning explosives to someone from whom they've been taken. So to address that the decision was to treat explosives differently and so you see here that a person who is required to relinquish a dangerous weapon other than a firearm well if it's other than a firearm remembered by the definition what does that mean it's an explosive that's the only thing that's covered that the person has shall upon service of the order immediately relinquish the dangerous weapon to a cooperating law enforcement agency. So only option is to give it to a law enforcement agency if it's if it's an explosive. Once a law enforcement agency do with it they transfer to the Bureau of Alcohol, Tobacco and Firearms and explosives for proper disposition. They have an office field office in Burlington. The assumption was that they would know how to dispose of these explosives. So are there other I assume there are other laws that they did having explosives to begin with? Yes. Or are there explosives that one can illegally possess that they would have to give up on this? The answer to that is yes. To both. There is there is a chapter in title 13 that criminally imposes criminal penalties for the possession of explosives that aren't held subject to a permit. There's an old law that permits someone to have them by permit. But yes, they decided the decision was to let VAT figure that out whether or not it should be returned to somebody because hey I've got explosives rather than trying to figure it out but so proper dispositions might not mean they might mean holding it might mean they check on the permit. That's right exactly. Now if it's non-explosive which means it's a firearm then this the rest of this language will also probably all seem familiar to you and I won't need to go through it in detail because this is more or less exactly the same language we passed in the FIBO Act 91 a couple years ago for purposes of relief from abuse orders. Remember there was an initiative I think from from the governor's office at the time but it came to this committee first to to develop a procedure whereby firearms that are seized or removed in an RFA situation can be stored. They can be stored by a law enforcement agency by a February licensed firearms dealer who wants to cooperate and they can charge a fee or remember by a third party if they submit an affidavit and the court approves so that the person could have a friend hold on to their weapons while the while the order is in place and sort of remember how all that whole process works while the same process is just repeated here so that not with respect to explosives those have to be given to alcohol, tobacco, and firearms but for firearms they can be held by either a law enforcement a dealer or by someone who the owner knows if they can you know provide an affidavit saying they're gonna hold it for as long as they're supposed to and not give it back during that time. So that's a long way of explaining several pages of or at least a couple pages of language here but you've seen it all before a lot so I can go through more details of that if you want but it's all exactly the same anything here that that was any different Just a quick question, since I knew and I wasn't here for Act 91 the court finally relinquishment to the other person will not adequately protect the safety of any person and the court supposed to make that finding is there some place that lays out on what basis to make that finding or if that's something we should discuss offline because it's familiar to other people I'm happy to do that. Oh no it's it's just it's left to the discretion of the court it's a broad it's broad language I think but it's it's left to I think the particular facts of the individual circumstances to make that decision is not not any more more clear definition provided. Eric, can I read somebody? No, go ahead. Maybe you might want to check with the judge because we had testimony recently about the fact that they don't do that don't really we might ask him while I was in the chair. Eric, when it gets to a federal firearms licensee holding these weapons and they're allowed to to charge for the storage of them if I remember correctly when we took this up a couple years ago that was a hotly contested bone and contention I guess about that's what I can is that addressed in here like the amount of fees that can be charged or yep how is that set up it's it's just it's just tracked on the same language but it does the same same thing in terms of the trying to find the fees section here so we'll think they so the sale language is also I think remember if it's if it's not retrieved within 90 days after the order expires or after the court orders being released then it can be sold with fair market value that's also identical to what's in that statute well the the as far as I know I remember that discussion that you're talking about the the language here isn't any different than that so if that that dispute or disagreement is still ongoing and this isn't going to change that one way or the other you know I'd like to say I'm just curious because I remember I don't remember what I had for breakfast but I remember that was that was pretty contentious yeah I remember correct what yeah I remember it also before your time that's rather why you have to breakfast I can't get involved uh so as I say that is all all identical to what you have um and oh actually this is uh uh this last subsection h is is uh worth mentioning so this this says notwithstanding all these other sort of rules that we talked about uh regarding taking possession of these firearms and storage and sale and that sort of thing there are a couple of circumstances under which uh weapons are not going to be taken uh and that is the first one uh or not returned at least so if a weapon has been removed under this procedure it's not going to be returned to the person if the respondents possession of the weapon will be prohibited by state or federal law so for example the person is you know a convicted felon is prohibited by federal law and state law now from possessing a firearm they're not going to get a back to them even though they're you know generally speaking a firearm is returned after the order is is no longer in effect so this just sort of puts a sort of a blanket uh prohibition on returning it to someone who is legally prohibited from possessing a firearm uh and also makes a provision here in subdivision two that they're not going to take it into possession in the first place uh if it is being or maybe used as evidence depending criminal matter so obviously we're not going to take it if it has to be used for purposes of a criminal case uh last provision here is that it's the one of these uh the final order or the order for renewal is appealable to the supreme court and lastly the effect the ax sorry takes effect on passage so i know that's a lot there's a lot of a lot of court procedure a lot of detail in there so thanks for bearing with me i know it's the uh a lot to it but covers it for now yep so we're in this bill i heard and i just want to get it confirmed does this incorporate into language we have in 422 or is it the concept that it addresses the issue we tried to address in 422 i noticed you mentioned rfa's and lots of places where you do language but i was just wondering how 422 intersects with this one i think it's the latter point that you made it's the it's the uh the discussion downstairs uh i think recognized the need to address a a dangerous situation in the moment that the situation is happening and that's why they added the electronic issuance of uh of the order and the ability to apply for it by email and have the affidavit done over telephone so that was although as far as i know there isn't any language of h422 that's in this bill i think that idea was an effort to address a similar concern so would it be you who would kind of give us some of a crosswalk so we understand what is supposed to be addressing our concern there or is that other witnesses trying to understand how to make sure that we have everything covered by say that well i would you do a crosswalk here's what we did in 422 and here's where this is taken care of in 221 or yep uh yeah you could hear some of that's what the chair would want or we would want but that would be helpful certainly i've actually i've i've did a memo on some comparing between some of the provisions of each so i could pass that along to the committee as well that's helpful do you have right in that you do one of those because i don't know oftentimes when there's like two competing bills you know you all have done those little like side by side so you can see how they compare i mean is it kind of structured like that or it's a narrative memo but it does it kind of does the same thing okay and then i i also did have a question about um at least with respect to for your own maybe your own independent analysis and maybe what also has been covered with respect to under the extreme risk of harm um the um and you know different ways to establish that chair the little eye uh it's two eyes the by his or her threats or actions reasonable person intended to place others reasonable fair physical harm to themselves i was curious about the speech component to that and namely on the fact that as you know there is you know developed case law but both and then are saving them a spring court where people can say like really nasty awful things even things that sound like you know in you know i said in themselves are back you know and again i'm i'm seeing that you know just it's not just the action just says threats or actions and so again i was just i was the premise of thinking about like when you know madonna said no i think a lot about a lot like they're about blowing up the white house because i mean i was you know i stated in a box like whoa oh my god that sounds horrible yeah and again so i'm but again i think there's also protections there the reason why we can say even really mean things you know as opposed to you know because i think why the actions typically you know words alone it worked at the forward that you don't have to actually have some kind of proactive steps forward so it's not mere words i'm just wondering did you all kind of go go through that analysis or has that really been on on that section they did not talk about it downstairs but i can tell you that the the the you know the true threat exception to the first amendment and sort of patterns that language pretty directly a threat that's a threat uh that places another person in a reasonable fear of physical harm a genuine first amendment exception that's that true threat doctrine so i think that would that would be a legitimate concern that you raise but i think that's how the courts have carved out you know it's not something that you that you in fact there's been a big debate and it wasn't among among the courts on that as to whether or not intent should be included or not because you know what if you didn't intend that but someone has that response but at least if you do intend intend to have that effect in somebody to make them fear harm to themselves they've carved that out that's a perfect amendment section thank you yeah you're welcome um the other concept that i'm just wondering what the discussion was downstairs is um tying things um and i and i can't i'm guessing what it is but uh at the time of the hearing uh-huh can you just share was there much discussion or back and forth about that because yeah i don't want to talk about i'm trying to because that was that you have a witness who i'm okay far about it just because uh that was uh i think it's a was a point that judge griffin raised accurately which is that uh you want to be sure that that the person poses this danger right at that moment and that you know the order shouldn't be issued based on what might have been the case five days ago right has to be has to be uh the evidence has to show that uh even at that precise moment of the hearing the danger is still closed the facts that um uh create a danger for other people are still in existence to justify issuing a court order i mean the scenario that i'm thinking of is um suppose there's someone bipolar and they're on their meds they're off their meds and so this idea that a snapshot in time is representative may not in fact encompass that reality so i'm just wondering how anyway that's no that's interesting point interesting point yeah hadn't had discussed it uh from that angle but yeah that's an interesting angle but i will leave for the judge too very much yeah sure thing ahead of time and i don't think i know we don't have witnesses until tomorrow but um if um judge could and carrot do you it's the best for you to go now sure i gotta start now um i gotta be back here at nine to the morning but i can be back here for an hour in the morning that's what you'd like good afternoon for the record brian greerson chief superior judge uh speaking to s221 you know i have uh works with eric and uh just everybody on this particular bill so um i i guess in very general terms this process this procedure this whole concept of extreme risk protection orders was unknown to me until about six weeks ago having read a sunday new york times editorial on the subject of my first knowledge and then a few weeks later senator sears and the committee presented their their bill there is a article in seven days that speaks to the i think the incident that prompted senator sears to get interested in this subject so i have not read all there's about five states that have these bills i have not read all of them in detail i have seen a chart that somewhat compares them and a lot of them are modeled on the relief from abuse procedures as this bill is um there at least it appears in connecticut which is the state that really started this process in 1999 and they took an approach as i read their bill uh instead of approaching it at least at the outset like the relief from abuse request more of a search warrant request meaning i would guess that you'd have to show the the imminent risk are danger to self or others but what the search warrant would allow is assuming there's a basis for the search warrant would allow the police to then confiscate any guns that they can identify by way of location or place so in that sense it's a broader initial approach than the relief from abuse order all we're going to be able to do is order no possession of firearms or surrender but um where that leaves the police in the middle of the night i'm not sure so i think that's something that committee may want to think about hi sure if you if you it appears at least in connecticut that the process starts would what would be similar to a search warrant meaning the police still have to contact us they still have to provide a factual basis for the search warrant but a search warrant would identify where they believe guns are located and the order would actually authorize them to search a particular place or places for firearms as opposed to the orders that we're talking about here for the most part say that the individual can no longer possess firearms or purchase them um and has to surrender or relinquish firearms but where it goes from there and what the police are able to do in some respects is up in the air if the person doesn't surrender yes yeah a similar discussion that we had before so i just i bring that up just as someone asked about the different approaches and that is an approach that is different than this but it would then assuming there's evidence authorize the police at the outset to go to search person's home or car or vehicle wherever they think the firearms are so i think when the committee looks at this bill um representative lawn asked about 442 and i'm not wanting to get into um and any comparison or analysis of that bill as opposed to this one but the difference is that if i understand 442 you're talking about uh at the scene of a domestic violence and obviously a criminal proceeding um and this bill does not speak to criminal proceedings you need to look at this in my view as a relatively narrow uh population by that i mean it talks about a danger to self or others and although it incorporates much of the same language out of the mental health title 18 provisions for defining the danger to self or others the missing factor element if you will is mental illness so you start with a person who is not suffering from mental illness but they are a danger to themselves or others if they were suffering from mental illness you had a mental health screener that case would probably go via uh civil commitment process and could be voluntary at first involuntary but there is no timeline uh akin to this so you eliminate that population because there's no mental illness here doesn't mean there may not be mental health issues that are someone else mentioned on and off medication so there clearly could be mental health issues at play here but it also doesn't involve a relief from abuse order where someone has made a complaint because that would also allow us to issue an order uh ex parte to prohibit the possession of firearms so you're not dealing with a relief from abuse provision and whatever the person is doing with this firearm or explosive doesn't rise to the level of a crime maybe a disorderly conductor maybe just shooting a gun off um that could be reckless endangerment so you're left then without a mental health issue without relief from abuse without a crime of domestic violence or otherwise with a very narrow population of someone who presents a risk so that's why it's in a civil uh context could easily I don't say easily but um and it's not anything I've discussed with the committee but um it's always been in the family division from the outset um I suppose it could have gone into the civil division but tracking it similar to relief from abuse it makes sense for a couple of reasons to be in that docket one because you're modeling at least this bill and it's present for models of many parts of components of the relief from abuse but more importantly it called for a hearing originally said within seven days and the reality is that our our schedules um are set out months ahead of time so we just don't have a block of time where we could fit in any hearing in seven days and you wouldn't want to bump for instance a juvenile proceeding to accommodate this so I had suggested and that's why the bill calls for 14 days so that we can fit this hearing in to essentially the block of time that every court sets aside every week for relief from abuse so there would be a place to put these final hearings the the ex parte process takes elements of relief from abuse the electronic processing of the orders really is a combination of relief from abuse and the search warrant provisions that we for a number of years had been allowed to process search warrant requests via electronics so that to a great extent is why the procedure is laid out as relief from abuse so when I look at the bill let me go back for a minute because of what I view as a narrow population I do not see this as having a significant impact on the number of filings in our court so it's the procedure and the process to get from that late night call to a final hearing that is the primary focus of this bill or certainly the judiciary's response the numbers for whatever they're worth out of Connecticut which I don't know the population but I assume there's millions of people living in Connecticut from a 14-year period from 1999 to 2013 they had about 760 of these orders about 50 a year with them obviously a much larger population so again I think that reinforces my thinking that this would not have a large impact on the number of filings they start yes they start with probable cause again as I'm reading more of these statutes I'm understanding more they start with probable cause on the emergency order that may very well be because they start essentially as a search warrant process which is clearly a a probable cause standard the difference is probable cause to establish location of firearms and extreme risk as opposed to probable cause for a crime but that may be why they start with probable cause because they're really starting with a different process but then at the end their final hearing does go to clear and convincing evidence so do you think that's the reason that perhaps their numbers aren't I'm sorry if those are the number of filings then no I mean you're going to start on a lesser standard than us so it wouldn't prohibit someone or inhibit is the better word inhibit somebody from filing whether or not they I don't know if that number is that's the problem with quick reading I don't know if that number is final orders issue or just a number of the process over that time follow up question on that the 736 orders is that is that just the final order since the other is just looking for a warrant for search you know the their initial phase in Connecticut is probable cause and for a search warrant so isn't or search and seizure I should say so are those 736 orders inclusive those requests I wish I could answer that but I don't this was a snapshot essentially a very one or two page summary of the orders and they basically well it wouldn't be an order if they saw it would it be an order if they were just came in seeking probable cause if they call those orders I don't know how they counted them that's what I'm saying orders that that's why hindsight being what it is I probably shouldn't have thrown that number because I don't know enough about it but it struck me as for the length of time they've been in effect whether it's applications filed or even if it is final orders it's a small number over that period of time whether or not it's because the final standard is clear and convincing there's no way of knowing as to how many were filed and maybe withdrawn or not but clearly I think the committee has to look at the burden of proof and that there was considerable discussion by senate judiciary over that issue and they they went back and forth to end up where they are but clearly recognizing this on an emergency basis you may want a less of a standard than you do for a final hearing because of the nature of an emergency request your honor um I don't remember if you were the one that said this I believe it was during hf 422 but my exact question you know is correct I thought with when it comes to issuing one of those orders to emergency orders to go into to take the guns away from the person that they uh in in a excuse me in a domestic abuse situation that how it almost you're going to have to have somebody cooperating giving you giving the police cooperating evidence as far as to where those guns are located how many there are things of that nature um was that you just said that about 422 or am I and so and if it was I'd like you to put you know put your thoughts into how tough it's going to be to execute one of these orders and come up with either different results where they're where they're going to most likely be able to seize all these weapons or not well I think clearly that issue was discussed below as it was discussed in 422 and whether I was the person that made that statement I think um I think the way 422 was certainly discussed anyway there's an issue there's a difference in and going to the scene of a domestic and a gun a firearm is clearly involved in the incident versus one that may be present playing view or there may be some other justification such as consent by one party to search a house so it tried to pin down I think the issue though is framed in in this bill as to what it really means to say no purchase possession of firearms clearly the one that's in the individual's hands if that's the case is easy but if you order surrender or relinquish we go back to the discussion we had the other day about what does that really mean and how do you enforce it one of the things that I don't think it's a complete answer but one of the things that is not in the bill and I didn't notice it until rereading it yet again but because it has mirrored the um relief from abuse provisions you'll remember when we were talking about relief from abuse a week or so ago one of the final sections after the judge is issued an order and it's then turned over for service is that it's filed with the so-called holding station which is a central location in each county for warrants and relief from abuse orders so even though it's not in the bill now you may want to consider adding that provision so that it's at least in a central filing place it will not go on the registry you asked a question about that so it doesn't prevent someone from violating the order but at least if there is a central location where other police departments were made aware of the existence of the order much like relief from abuse it may enhance its the protection that you're looking for but that issue of you know does this authorize the police just goes to someone's house uh that's a whole separate issue what did you call the holding station the holding station so I think that's really the issue is to how far the police can go other than at the scene of the incident to determine other firearms is going to be clearly case case dependent on whatever information they may or may not have I don't know that I can answer any better thank you I did notice and as Eric was giving his run down on page three where it talks about the conditions or what we have to look for to establish extreme risk of harm at the hearing stage he was right in saying under line 12 the respondent has intended to place others in reasonable fear of physical harm that was for the most part taken from the title 18 mental health definition but there was added in the the term intended which changes the focus from a subject to objective and I wasn't downstairs when they discussed that particular addition so if it if it read the way the mental health statute read I believe it just says has placed another unreasonable fear of physical harm which does change the element of proof when you're talking about intent you have to consider other factors such as their mental health again you mentioned something about being on and off medication whether they're on under the influence of substances all goes into whether someone can form the intent to do this so it may be again something the committee wants to discuss further and and think about in that regard because it's not just the addition of a word it changes that the proof that we would be looking for and the burden that the state would have in meeting that potentially a higher burden if you're if you're talking about what we refer to a specific intent to that your actions result in a intended result it's a difference it is a higher it adds another element to it it adds the element of mental intent and many of these folks maybe dealing with those kinds of issues that's why I said they they haven't risen to the level of mental illness doesn't mean there may not be mental health factors involved in these situations so I point that out as a decision really for the committee to discuss and a lot of it as Eric said did mirror the relief from abuse provisions I'm just trying to see if I had any other specific comments on page 11 22 someone other than myself identified online 16 that it shall file the original motion says fine and I don't know if that was the question that representative Conquest had about is that part of the normal practice now with relief from abuse no that was a different section but but that is part of it that it has to be filed and that's where I would suggest that might be an appropriate place if you're going to include the holding station somewhere in there when you get to the point in the process where the order has been issued and it's being served that it would also be filed in the holding holding station comments from other judges I just want to see if there but said some of them wondered about civil process the civil stocking provisions and I've addressed that asked about the volume of cases my prediction is not a large number so it won't impact the relief from abuse docket obviously in some courts is very very heavily populated thank you one of the when you get into the area of termination or new emotions um and let me go back for one minute at the very outset of the hearings this afternoon I think um chair person Brad said something about a relief from abuse being like a relief from abuse order with a one-year uh any relief from abuse order is always up to the discretion of the court so that there's nothing automatic but one year although I will say that in many many cases it's become somewhat of a standard but um there's no I think the maximum now is five years that we could go on a relief from abuse order used to be unlimited but but when you get into determination and again this is more of a policy decision we're looking at it begins on page 12 termination or new emotions and you'll see at page line 17 motion to terminate should not be filed more than once during the effective period and Eric spoke to that so some of the questions that I had are you know does there have to be a basis for the motion to change the order other than just saying I want to change this order in other words does the is the respondent in that case the actual moving party by filing a motion saying there has been a change in circumstances that I can show that no longer warrants this order the way the the bill reads now that the individual files a motion to terminate it's not clear to me what if any grounds he has to include as a basis for that but then it was on to say that the state shall have the burden of proof by clear and convincing evidence that kind of reverses the norm usually when someone is the moving party in the case that they then have the burden of coming forward and proving in this case would be a change of circumstances so that is different than what we normally see in these modification processes and so again I think it's something the committee needs to look at and decide that's so this at least under the bill as it's written this would be terminating a permanent order so the state has already proven clear to this thing and so in normal circumstances a moving party who wants to vacate something or terminate in this case would have the burden of proving why it should be why the court should consider changing the order and is there burden the same that the standard usually so in other words is the burden to to modify the order or terminate the circumstances and they have to convince the court of that like we're convincing or is there the problem is an overgeneralization in other words there may be i'm not going to say there may not be places where the burden remains the same but it is not uncommon to have a different burden on a moving party saying there's no longer a need for this order the the state in this case has had the burden at the outset to prove by a very high standard i mean keeping in mind that clear and convincing evidence is used in very very few situations the one that comes to mind most readily is fraud cases where that's sometimes used but it's usually either preponderance of evidence and by far the majority of civil proceedings that's the standard in relief from abuse or if you're in a criminal docket obviously it's it's beyond a reasonable doubt so i think you have to look at okay if the respondent is the moving party that she or she have the burden of showing why the order should be changed and by what burden would you keep in other words just because it's clear and convincing me at the final stage it doesn't have to be that again that's a policy decision for the committee to consider but this procedure is a little bit different in that the respondent files the request to change it but then the burden shifts to the state to prove once again that that that risk or that the individual poses that risk continues and that's clear in on page 13 at line 15 this is where they have sought an extension of the order but it's the same they their burden would be to show that they continue to pose that risk and even the the extensions of the order 60 days i mean i think you again have to look if you've already met the burden of clear and convincing you're now asking to extend it or should the burden be the same when the state is seeking to extend the order if you're extending the order though are you suggesting that in some some circumstances the the extension would be a lower burden of just a preponderance at that point or it could be it it is truly again a decision of the committee estimate for example in a relief from abuse once an order is issued and whatever length of time that the order is in effect the person who has the benefit of the order can seek an extension of the order let's say it's a one-year order within that one year of the last month they'll file and request an extension of the order for perhaps another year they do not have to show at that time that abuse has occurred within that one year the court can continue the order at the same burden of proof as they originally had essentially based on the same facts that occurred a year ago so when you have these requests coming in again the committee has to decide who has the burden what do they have to show in order to continue that you could say that they don't have to show any increase in that time they can well the state could rely on the same facts but i i guess i'm not quite cognitive so as i already described our based situation if there's a request for an extension the court can grant it but based on the same standard what i didn't say and what i should have said is the legislature has put in the statute that the court does not there does not have to be a finding of further abuse or violation of the order within that one year in order to grant an extension so i'm saying the stat the the legislature created that which may not have been the case so that's why i'm saying it's careful that when you're looking at renewals and termination that you have to look at each one of them individually uh and decide what should that burden be for renewal and if who's the moving party is it their burden properly and by what by what standard was it six seven five six seven five no i wanted yes on that it was the other one okay so i i just want to be clear because you would say thank you thank you six seven five yes the other one okay but your honor so i i just want to make sure that i've got this straight to my head um when it comes to the renewal then if they're renewal by the state yes okay if there's really no control again black credit terminology burden approved placed on the the the the proponents of the extension does it fall back to the person who's had these uh you know this order issued against them to prove that the circumstances have changed where they're now in a better position state of mind or otherwise to have the order dropped and they get their their weapons back if this if the state i think the best way to look at it is if the state is seeking the extension of the original order they're filing for that extension and the burden of proof is going to be on them to prove there is a basis for continuing an order for another 60 days so that's why the normal course is the person filing is the moving party or they have the burden of proof and i'm saying the committee has to decide at that point um what will that burden be for renewal will it be the same as the final or something less um and what facts what information is the moving party have to bring forward to warrant the extension and that kind of goes back to the question um that you had about the facts and at the time of the hearing and what we had been talking about is there are some procedures for instance the juvenile procedures that when the state files a petition saying that the child is in need of care and supervision today we may not have a hearing for two or three months down the road the state prevails on that petition based only on the facts that were in existence at the time the petition was filed in this hearing what you're looking at the way it's at least set up at this point is you're looking at what prompted the emergency request four or five weeks ago ten days ago and because of the nature of the request being an emergency you're looking at at the final hearing does that um same risk still is it still there so i would think by that by almost by definition you'd want to see what's happened within that time frame unlike the juvenile petition so that that's why it says at the time of hearing you're going to encompass not only facts that brought you into court original but what's happened in the meantime it may be that there was a an adjustment in medication it may be the person has whatever the issue was may have resolved itself so that the state decides not to proceed so i think that's but at the same time things have escalated that supports finding that the risk continues and therefore you don't want to limit them to the evidence that was in front of them that night but that was one of that issue of burden proof um and who has the burden uh was a discussion that a number of judges presented to me when i sent the bill out to them for comment um concerned about okay who is the moving party and should the moving party depending on what you're trying to do normally is the one who has the burden of proof but it's a question of what that burden should be and what facts they have to show that that was this bill i think for the nature of this proceeding something new to all of us really so um i don't none of us have had experience so you're trying to figure it out along with the rest of you but those were the substance of my comments but i'm certainly glad to answer any questions the committee has and had it right hearing none last moment sure it was good thank you so thank you for the record and Kara cooks and i'm with the vermont center for crime victim services and um you know just as a reminder for folks in the room who aren't familiar with the center um by statute the center is responsible for promoting the rights and needs over months crime victim statewide and um we're responsible for representing interests of all crime victims which includes homicide survivors as well as domestic and sexual violence victims and i should also be sure to note that you know part of our interest in this is the our victims compensation program and over the years we have made hundreds of thousands of dollars on behalf of families um to help them pay for funeral by headstones uh clean up crime scenes and obtain mental health counseling to cope with their grief um that is what brings the center here today to participate in um this uh hearing and to bring information about the legislation um for us the primary goal of criminal justice reform should be to change the paradigm from a system that doesn't just respond to crime but to a system that prevents crime and builds like s221 are certainly part of that and we support the effort to bring us to 221 um because it's one of the many tools that can be used to address um homicide ultimately we see us 221 as a homicide and suicide prevention tool um and I think as the judge testified um based on the experience in Connecticut um the the area where this tool might be most effective is in the realm of suicide prevention and um you know at one point I was asked well you do homicide you do homicide stuff why do you care about suicide stuff if you think about recent cases in Vermont um homicide and suicide go together and you never quite know who actually might might be on the final end of a violent act if you think about I mean the Schumacher case and essay there's there's a lot of cases where um trying to mince and pin down like who actually might be it um in harm's way um is taking us away from the conversation around preventing the harm and I have some comments about the bill that get back to that issue as well um another place where I think that this particular tool is useful are the cases that judge Gerson was describing where um someone has not yet committed a crime um so cases where um someone may have communicated threats uh specified or not that would suggest an intent to commit a crime but the person has not yet done the other things that would rise to a level to establish probable cause and the other thing that I think the committee should be reminded of is some of our existing criminal statutes like criminal threatening disorderly conduct um even misdemeanor domestic violence those are misdemeanors is that and as this committee well knows when you work on um bail and in pre-trial issues um committing a misdemeanor offense unless the person is a risk of plight from prosecution means that you know that person won't necessarily be held and so again having the tool to potentially remove weapons from a situation in those low well particularly in the criminal threatening arena what might be perceived as a low level misdemeanor is important in terms of addressing public safety risk overall um so um with that as background those remarks I'm trying to be mindful of your time so I'm going to stick around a little bit some comments on the bill so on page yeah can I I'm trying to eat it well okay got it um page three line eight um so we would um first of all we would definitely reiterate um judges judge grierson uh comments about into a uh little two um that there needs to be some form of subjective intent that the threats that are communicated put the person in reasonable fear of physical harm to themselves or others um can you show me tell me where sure so I'm on so that's on line 12 um page 3 yeah so I mean what's not in common in sort of similar areas where we're talking about the communication of a threat is that it's a threat that would cause a reasonable person to fear their physical safety and so that's how you take what would be a subjective standard and move it to an objective standard so that we're not um engaged in an inquiry that's looking at what's going on inside the head of the person so that it's a reasonable inquiry that you know if a reasonable person would consider it to to be a threatening then that uh is sufficient so um by his or her threats or actions um well by his or her threats or actions um a reasonable person um would fear for physical harm to themselves I think would be how you would right because intent I mean especially in an ex parte basis I mean what evidence are we going to have to show subjective intent I mean that's a pretty there has there's not a lot of time with that case at that point to even develop a subjective intent um the other sort of overall issue as you're looking at 2a and 2b it's sort it's setting up two different schemes here extreme risk of harm to others maybe shown by these factors and then extreme risk of harm to himself or herself may be shown by establishing that the respondent has threatened or attempted suicide or serious bodily harm um one of the concerns is sort of dividing out these two factors I think it's suggesting that the petitioner in this case is going to need to say this is the person who is being threatened or this is the this is the this is the person who could be subject to the harm either the respondent themselves in the suicide situation or some other person and and I think that if if these um factors could be merged so an extreme risk of harm to self or others may be shown by establishing and then lay out those factors um you know that way we're not requiring a judge to find that there's a threat against a specific person or that this is a suicide threat because again if you look at so many cases in vermont that are um homicide suicides I don't know that the players if they had had a tool like this on the front end we would have wanted to ask them well who who specifically do you think is going to die or is this person going to they're threatening to commit suicide are they you know what about the threat to other people I hope I'm at the end of the day I hope I'm articulating this clearly I don't think that that's what we're asking the petitioner to be able to do especially in an x-part day stage yeah I mean it's really simple so you know to I would just read the an extreme risk of harm um to himself or herself or others may be shown by establishing that and list the first three factors that you have and then just list leap add the second half in B which is um that the respondent has threatened or attempted suicide or serious bodily harm and then all of those various factors can be encapsulated into whether the person is a risk of harm to self rather is that nice yeah okay um on page seven lines six to seven I think this might just be an oversight I'm hoping this is an oversight so this is for the emergency x-part day um this this line begins a law enforcement officer may notify the court that an x-part day extremist protection orders being requested pursuant to this section the court shall not or issue the order until the motion is filed and I consider that word filed to be a legal term of art which and although I would defer to the judge on this my concern is that the perception would be you know that it's filed with the court as opposed to submitted electronically um and because I think that that's what we're getting out with the x-part day is the opportunity for it to be um for the order to be processed through these electronic means and that sort of suffices as the filing and then the order is issued and it's effective upon issuance um but and I think what this section is really getting at here is the idea that the law enforcement officer can call ahead but not until the judge actually has the affidavit and the motion and materials should the judge be acting on it so I think that um online seven words has filed I think what you're what you want there is submitted because the subsequent sections talk about the submission of the supporting document um so my next comment is on page 11 okay and this is going to be oh right on page 11 line 18 you can see where that follows through with the electronic um so that's that's how that works there um on page 12 that we would echo um the judge's comment on the standard for termination so the idea that a moving party isn't going to then bear the burden of proof and I'll say that by comparison um under 15 vsa 11 of 3 which is the rfa statute after a final order has been issued if the um in that case it's and or respondent to that order um wants to change or terminate the order um they would need to show a substantial change in circumstances so that's the language that's used there um in order to um modify or terminate a final rfa so if the intent is for these provisions to match each other that's what that would look like the other thing that i would point out this is uh so page 16 line 20 the so intentionally committing an act prohibited by the court or failing to perform an act ordered by the court so in this case the person is going to be subject to this order is the person who's the respondent who's been served with the order the the violation is going to be um imprisonment by not more than one year so it's a misdemeanor offense to violate the order you know i would submit that probably by the time if this order has been issued and somebody has been found to be in possession or to have purchased a weapon and that's been caught before it's a homicide um because that or suicide i mean that's probably where we're headed um you know i just wanted to point out and i know there are a lot of conversations in the committee about what penalties we ascribe to certain behaviors but you know to the extent that this is getting a homicide prevention again it's misdemeanor if the person is not a flight risk um they'll probably be released on condition and and we'll go around the loop again potentially so you know i don't know where that leaves us but i'd be remiss if i didn't point that out again did you testify down in the senate on this bill very briefly at the time i the time that i was given to testify in this bill the the draft which comprises most of what you see now was not complete yet so i so the original bill as introduced was what was actually before the committee there was a working draft um so i testified generally about the sort of concepts that i would want to see in the working draft but i didn't actually have an opportunity to review the language that you see before you if that makes sense well it does but it was something this important i would think that they'd almost give you card launch to come in and testify once you know the latest version was what's drawn out i think um i think and this is very reasonable and we fully support this there's a lot of um everyone is really eager to get work done on this quickly and i think that that's probably a reason why there wasn't another day of testimony that would have given me an opportunity to make the comment i mean i i you know and i think this is another place where we can hopefully make some of these adjustments if to the extent the committee is interested um so um the other thing and this is what you've already heard this um the 60 day time frame for the final order is a pretty brief time frame one of the ways that i think we could see this um bill functioning um if we're really looking at it as a suicide prevention bill is um um what this allows all the players to do is very quickly remove guns one potential means of committing suicide from a situation so that the players can look at whether there are other tools that can be accessed you know can we seek a title 18 order you know that this person is a person in need of treatment should we is there an underlying crime here in this given case whatever it is and and then the state can um file criminal charges if on further examination and you know investigation that that ends up being the case if it's a case where maybe there's a family member involved and we are talking about domestic violence um should that person go and final rfa order at which point it would be possible for um it would mean that weapons can't be possessed by that individual under federal law um it's really just a sort of a it's a it's an opportunity to at least get the weapons out of the way so that the players can then see if there's another tool and what could happen in the suicide prevention situation for example is that the person would stipulate to a final order and in exchange working with their family who's probably who may be really involved in trying to get them help and trying to partner with them and be their family they might say you know will you stipulate to this gun order and then we're not going to push involuntary commitment and let's help you voluntarily seek treatment in a facility what i've heard is that a 60 day time frame might not be a long enough period of time in which to do that um and again um in the rfa context if we're comparing this procedure to the rfa as the judge specified it's discretionary on the part of the judge how long the order is going to issue um the costum is a year but i think at the very least providing for the court to exercise its discretion in how long the order needs to issue um might be a more reasonable option is if these are really about like let's look case by case and and fit the tools to the scenario you saw that there's provision here that at a certain point after an ex parte order is issued the state might not pursue a final order and maybe that's because either the person is stipulated to a final order or there are other tools to help um okay oh senator representative you had a question about well if this order doesn't make its way into a registry what are we going to like what do we do i also think that practically speaking part of what happened what can happen and i imagine will happen is that law enforcement or even another interested person maybe that family member can get a copy of this order and bring it around to local local um gun dealers and say you should know that this order was issued and i i would imagine that that was the decision of whether or not to sell maybe not but i i do understand that here go ahead no i i understand what you're trying to say but uh you know we heard testimony out on the floor i believe it was last year from representative young his father did exactly that for his brother and his brother knew it he just went prior that you know the the the circle went bigger he went outside purchased a gun then committed suicide so yeah so uh i i i i guess my issue with all this is we're it we're creating cracks you know in the system already why i i and i don't have the answer to this and i'm pretty sure you don't either but there's got to be a way to this is an issue that we have to solve but we have to we have to let everything we have to be talking about everything the mental health issue the registry issue as far as stuff like this should be in the registry until you know well you know the sixth day they ordered no but uh but beyond that when when we get to the point where where we're talking about you know a permanent band if that's not in you know the uh the the federal registry we are failing you know the citizens of the state of vermont as far as i'm concerned sure no i understand um i think the approach that we're all trying to take at this point is um let's grab as much low hanging fruit as we can in hopes that if we can for now we can this is a tool it's a tool that we can use um i think that uh looking at the registry i mean there are a lot of we have lots of reasons why we'd like to look at the registry and how orders make their way to the registry um i know that um at the center with relief from abuse orders generally we would like to centralize the mechanism for electronic access um and they're looking at tools to do that absolutely yeah no i i completely appreciate the comments i don't have the language today to fix that problem i wish i did i wish you did yeah i do yeah um the other issue that's come up there's a question sort of well how do you how does 221 compare to 422 and what are why are we talking about these different things um first comment i would make is that the state of connecticut which is um one of the models for 221 has both language that looks like 422 and language that looks like 221 on the books and i think that that goes to explain why um just sort of at the outset why um these two items are both different types of tools for different situations and they're complementary um but that 221 doesn't fully address the problem posed by 422 so to go back to last year and i wasn't even here because of maternity leave but i'm really well versed on it now um in 422 you have we have to start with probable cause that a crime has occurred and then that case to mess a domestic violence crime and then um the law enforcement officer also needs to either obtain a search warrant to get weapons that um weren't used in the commission of that crime or needs to um be satisfied that one of the warrant exceptions the constitutional warrant exceptions can be met most common would probably be the exigency exception um consent would also be possible there's there are other constitutional exceptions law enforcement officers do this all day it's their job to understand the fourth amendment and the eleventh amendment to the constitution and the constitutional bases for search and seizure as well as all of the constitutional exceptions now once those two things are met the law enforcement officer the sort of the threshold the standard is going to be whether it's reasonably necessary for protection okay let me compare that to 221 just that portion so in 221 although it's possible that another crime has been committed and certainly the possible grounds describe things that could in and of themselves be crimes it's not necessarily required that a separate crime has been committed or the crime is probably going to be a more minor crime if we're talking about a very serious violent crime the better tool is probably going to be to charge that crime and seek a hold without bail and that's what you see in sort of recent cases that that's sort of the approach then or if the and or if the person is released on condition it can be in no weapons condition um it's also really important in 221 that we're trying to do this as a civil process because we're trying to address suicide and we shouldn't be criminalizing suicidality in the middle of this um make that in mind that it's sort of a lower level of activity the standard is much higher for an ex parte order it's going to require an extreme risk of imminent danger so uh sort of less uh serious not necessarily criminal activity really high burden to ultimately get us to an order whereas for the 422 we've established that a crime has occurred we've established the constitutional warrant exception and so we just need to show that it's reasonably necessary for the protection of the victims that's what sort of justifies and makes these two um balance but they're addressing two different situations and so why would we want the other situation um to have a lower standard in 422 well because maybe what that person did was physically strike their partner there's a context in history of coercive control and maybe a history of other what we call low level violence they haven't gone so far as to break someone's arm or their leg yet maybe they've been lucky that's why it hasn't happened but in that immediate situation maybe they didn't communicate a threat like i'm going to kill you or i've got guns i know how to use them you know whatever the sort of threat would be that would get us to a level of extreme risk of imminent danger we don't require that threat in 422 because we already know statistically in a domestic violent situation where law enforcement has intervened but that's the most dangerous time for a victim that's nationally statistically we know it so we're not going to require anyone to jump through coups to show you know extreme risk of imminent danger based on threats that a smart perpetrator probably won't communicate verbally verbally but will have communicated with their conduct we're not going to we're not going to require that high that high burden it might not it might not in every case be easy to show but that doesn't mean that the threat isn't real and that's why there are 18 states around the country that have bills but have statutes that look a lot like 422 because it's an acknowledgement that once you have probable cause of domestic violence crime has occurred we are in the zone of danger so the other main difference between these two bills in 422 we're not going to require a court order and that's because law enforcement has made the sort of determination and they make all day around warrantless searching seizure or they could go and get a warrant too actually and that would be a court order it's definitely contemplated in the bill that they could go get a warrant if they wanted to on this basis and that looks a lot like another issue that would be very familiar in this room animal cruelty in an animal cruelty case it's on the on the books and I can provide you a citation if there's probable cause to believe that the animal on the premises has been neglected then you the legislature have authorized law enforcement in this and humane society to seize the animal for care and protection without a warrant and that was upheld that practice was upheld as a matter of constitutional due process and Vermont both in terms of Fourth Amendment and article 11 which is the Vermont Corollary provision under um Hagerty the Addison County Humane Society and that's 176 Vermont 405 that was decided in 2004 litigated by my former boss Peter Langrock so I have to have a little humor um so uh that's you know the brief the very brief version of like the difference between 42 and um 221 is that um you're going to require a court order and you're going to have a much higher standard in the extremist protection context because a crime hasn't necessarily occurred and certainly not a crime that we already know statistically puts the victim in a very direct sort of danger um that would conclude my comments are getting really close to time and yeah and I do actually um so tomorrow I'd like to ask you about the um about the court and proof whether you know the clear convincing and the um oh yes absolutely yeah Martin the other question it can again be for tomorrow I've been trying to list the questions you've hit on most of them uh but uh the ensuring the surrender relinquishment of dangerous weapons if there's any other ideas um on that particular issue as well right well that's another huge difference between 422 and 221 but but how do I deal with it under 221 sure I think that's that's the question I think yeah thank you