Ritchie v. State of Vermont ( 2021 )

VERMONT SUPERIOR COURT
Washington Unit
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
CIVIL DIVISION
Case No. 643-12-19 Wnev
Ritchie vs. State of Vermont
Mr. James Ritchie’s driver’s license was revoked for life in 1991 and 1993 due to several convictions for
driving under the influence of alcohol. In 2018, he applied to the Department of Motor Vehicles (DMV) for
reinstatement of his license under the 3-year “total abstinence” provision at 23 V.S.A. § 1209a(b).
Reinstatement requires, among other things, total abstinence from the consumption of alcohol and
nonprescription regulated drugs. In the course of the DMV’s investigation, Mr. Ritchie tested positive for
cannabis use, though he denied using it. The DMV denied reinstatement, and Mr. Ritchie sought
administrative review. After an evidentiary hearing, an Agency of Transportation (AOT) hearing officer denied
relief. Mr. Ritchie then sought Rule 74 review in this court pursuant to 23 V.S.A. § 105(b).
The Vermont Supreme Court has described the applicable standard of review as follows: “Courts
presume that the actions of administrative agencies are correct, valid and reasonable, absent a clear and
convincing showing to the contrary. ... [J]udicial review of agency findings is ordinarily limited to whether, on
the record developed before the agency, there is any reasonable basis for the finding.” State Dep t of Taxes v.
Tri-State Ind. Laundries, 138 Vt. 292, 294 (1980). “[C]ourts ‘employ a deferential standard of review’ of an
agency’s interpretation and application of its own regulations.” in re Soon Kwon, 2011 VT 26, 4 6, 189 Vt. 598(quoting Conservation Law Found. v. Burke, 162 Vt. 115, 121 (1993)). Review of the agency’s conclusions of
law, however, is de novo. In re Soon Kwon, 2011 VT 26, 4] 7.
The record on review consists of the written record before the AOT. No party submitted a transcript of
the AOT hearing. See V.R.C.P. 74(d) (“Any party desiring a transcript of any portion of the proceedings to be
included in the record on appeal shall notify all other parties thereof, shall procure such portion at that party’s
own expense, and shall cause it to be filed with the clerk of the superior court within 30 days after the filing of
the notice of appeal.”)
Cannabis is a regulated drug for purposes of the total abstinence reinstatement provision. See 23
V.S.A. § 1200(2)(a) (defining “drug” to include regulated drugs listed at 18 V.S.A. § 4201); 18 V.S.A. §
4201(29)(E) (defining “regulated drug” to include “marijuana”).
Order Page 1 of 3
643-12-19 Wncv Ritchie vs. State of Vermont
Before the AOT, Mr. Ritchie asserted that he does not consume cannabis, and that the positive test
result may have come from his longtime therapeutic CBD use or from secondhand smoke he experienced at a
party. He also asserted that he takes creatin, which he asserted may have magnified any small amounts of THC
in his system.
The record, however, included evidence in his medical records of an admission to smoking cannabis for
pain, having previously tested positive for cannabis use, and that his CBD supplement could not possibly be
responsible for his current test result. The hearing officer found that the “very high” test result produced
during the investigation could not be explained by any of the reasons for it offered by Mr. Ritchie. He impliedly
found that, despite his testimony to the contrary, Mr. Ritchie had consumed cannabis in violation of the total
abstinence provision. He accordingly affirmed the DMV’s decision to deny reinstatement.
On appeal, Mr. Ritchie concedes (for the first time) that he occasionally has consumed cannabis during
the 3-year lookback period. He asserts that an elderly woman from his church bakes cannabis into cookies and
brownies and distributes them to him and other, mostly elderly, members of the community, claiming that
doing so is “legal.” Mr. Ritchie asserts that he had no idea that by consuming cannabis in this fashion he was
doing anything “wrong,” and he describes at length why he believes he both needs and deserves
reinstatement.
The issue, however, is not whether Mr. Ritchie was right or wrong to consume cannabis in an ethical,
moral, or criminal sense or whether he misunderstood what the total abstinence statute requires. The issue
also is not whether he truly needs his license to be reinstated or in some moral sense deserves it. Similarly,
reinstatement, whether granted or denied, does not necessarily reflect on whether Mr. Ritchie is a good
person as he represents. The court has no doubt that Mr. Ritchie helps his parents, son-in-law and
grandchildren, and others in the community as he describes. Perhaps this is an issue which the legislature
might consider fixing in light of other changes in the laws concerning cannabis, however issues concerning
addiction, substance abuse and highway safety are complex.
The legal issue that matters to reinstatement is whether Mr. Ritch(ie has been totally abstinent for the
last 3 years as the statute requires. The hearing officer found that he has not. There is no basis on appeal for
overturning that determination.
The hearing officer’s decision therefore is affirmed.
Robert R/Bent,
Judge
Order Page 2 of 3
643-12-19 Wncv Ritchie vs. State of Vermont