Background
On September 1, 2024, Sean E. Devoid was driving on Route 7 in Pittsford, Vermont, when his vehicle went off the road. A state trooper responded at 11:30 p.m. Devoid initially denied drinking but later admitted to having “maybe three beers two hours ago.” The trooper observed watery eyes and breath smelling of intoxicants. Devoid refused field sobriety tests, a preliminary breath sample, and later an evidentiary breath test at the barracks. The trooper issued a notice of intention to suspend his license under 23 V.S.A. § 1205(a)(1), which provides for automatic suspension when a DUI suspect refuses testing.
The superior court held a preliminary hearing on the civil suspension on September 30, 2024—twenty-nine days after the offense. At that hearing, Devoid was also arraigned on criminal charges of DUI-third offense and negligent operation. Following an evidentiary hearing in September 2025, the court entered judgment for the State in the civil-suspension proceeding. Devoid appealed, arguing that the trial court lacked jurisdiction because the preliminary hearing occurred more than twenty-one days after the offense, violating 23 V.S.A. § 1205(g).
The Court’s Holding
The Vermont Supreme Court affirmed. It acknowledged that under State v. Love, 2017 VT 75, ¶ 12, 205 Vt. 418, the twenty-one-day preliminary-hearing requirement in § 1205(g) is mandatory and jurisdictional for second or subsequent offenses, and that failure to comply ordinarily requires dismissal absent consent or good cause. However, the Court held that Devoid waived this jurisdictional challenge through the doctrine of invited error.
At the preliminary hearing, defense counsel stated, “[w]e waive all of the applicable formalities and enter a denial to the civil suspension.” Counsel later clarified that this waiver included the requirement that a final suspension hearing be held within forty-two days, indicating that the “applicable formalities” referenced the statutory hearing deadlines. Devoid never objected below that the preliminary hearing was untimely. The Court concluded that this record demonstrated a “conscious choice” to forgo the protection of § 1205(g) and consent to a later hearing, citing State v. Gurung, 2025 VT 52, ¶¶ 6, 8, for the proposition that invited error requires voluntary and intentional relinquishment of a known right.
Because Devoid invited the alleged error, he could not profit from it on appeal. The Court emphasized that under the invited-error doctrine, there is no standard of review; the party who invites the error waives the right to challenge it. See State v. Morse, 2019 VT 58, ¶ 7, 211 Vt. 130.
Key Takeaways
- A defendant can waive the mandatory twenty-one-day preliminary-hearing deadline for civil license suspensions in DUI cases, even when that deadline is otherwise jurisdictional for repeat offenses.
- General waivers of “applicable formalities” at arraignment, when coupled with specific references to statutory hearing deadlines, constitute invited error that bars subsequent appellate challenges to timeliness.
- Defense counsel’s explicit waiver of statutory time limits at a preliminary hearing binds the defendant and precludes later claims that the court lacked jurisdiction due to untimely hearings.
- The Vermont Supreme Court will not apply a standard of review to invited errors; the waiver is absolute and precludes appellate relief.
Why It Matters
This decision reinforces the finality of procedural waivers in Vermont’s civil suspension proceedings. Defense attorneys must carefully preserve objections to statutory deadlines at the outset, as broad waivers of “formalities” will be construed as intentional relinquishments of jurisdictional protections. The ruling clarifies that even mandatory time limits designed to protect defendants’ rights can be waived through counsel’s conscious strategic choices, and such waivers are effectively unreviewable on appeal.
As a three-justice panel decision, this entry order is not precedent before any tribunal, but it signals the Court’s continued strict application of the invited-error doctrine to statutory timing requirements in DUI cases.