Judge Orders State to Release Auditor Tom Salmon's DUI Video

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* updated below *

In a five-page ruling issued late this afternoon, Superior Court Judge Geoffrey Crawford ordered the state Department of Public Safety to release the roadside video of Auditor Tom Salmon's DUI traffic stop.

The state has until 4:30 p.m. Thursday to release the video to Burlington attorney John Franco. The state's attorneys could not be reached for comment about the ruling, or whether they will ask to stay the judge's order.

Franco, a supporter of Salmon's general election challenger Doug Hoffer, a Democrat-Progressive, ordered the DUI video from the DPS website back in early September. Initially the request was granted, and his credit card was charged $45 for a copy. Then Franco received word that his request had been denied by DPS Commissioner Tom Tremblay.

Franco appealed the ruling, was denied again — and then sued the state. First in federal court and then in state court.

Franco told reporters outside the courthouse that he had initially requested the video because, like the video of Sen. Peter Shumlin's traffic stop released in June, it may reflect on the judgment of a public official.

Franco has called into question Tremblay's denial of the Salmon video and release of the Shumlin video, calling it a double standard that a video of a Democrat was released while one of a Republican was kept secret. Tremblay, appointed by Republican Gov. Jim Douglas, claimed that he only released the Shumlin video because it was a civil violation. Salmon's DUI arrest, however, resulted in a criminal charge. Records of a criminal investigation can be withheld from the public, and Tremblay and state attorneys argued that the video had that status.

However, state law allows for the record of an initial arrest to be released to the public, and Franco argued that the DUI video is an initial arrest record. "In fact, it's probably the best record," said Franco.

The state and Franco argued their cases before Crawford this morning during an hour-long hearing in Washington Superior Court in Montpelier.

In his ruling, Crawford agreed with Franco that the video is a public record as broadly defined in state statute. It's also a recording that occurred on a public roadway.

"A roadside stop and initial DUI investigation with field sobriety exercises is an inherently public event," wrote Crawford. "It occurs out-of-doors on the public highway. The driver suspected of DUI receives an exit order and is questioned beside his car. The field sobriety exercises occur on the shoulder of the road. The operator is arrested in public before he is placed in the police car. A bystander or a news team could watch the entire process. There is no reason to believe that at common law, either law enforcement or the person charged with the offense had any expectation that the events following the stop would be in any sense private.

"The wide use of police recording equipment makes disclosure more painful and embarassing to the person charged with the offense, but it does not alter the fundamentally public nature of the stop, roadside investigation, and arrest," he concluded.

Crawford didn't determine whether a DUI video is an arrest record, because he said case law has not defined the term "arrest record."

"The guidance which is available is more general and leans consistently towards the release of records unless they fall squarely within a narrowly construed exception," wrote Crawford.

Instead, he ruled that the video itself is a public record that warrants release to the public on request. Crawford also made it clear that the release of DUI videos will not compromise police investigations, because they were taped on a public roadway.

Franco said he would make the video generally available to the media upon receiving it, but he is unsure whether he will make it more widely available to the public.

Download Judge Crawford's decision: Download Decision

* Update from Attorney General Bill Sorrell *

Attorney General Bill Sorrell said the state will not request an immediate stay of Judge Geoffrey Crawford's ruling.

"The video, excepting Salmon's SSN and some aspects not relevant to his case, e.g. police radio chatter, will be released today as ordered," Sorrell tells Seven Days via email. "We have 30 days to decide whether to appeal the judge's decision."

Comments

[Jimmy]

What's the big deal? Whenever I see him I say "is that guy drunk?"

[Tim]

As technology gets better and more compact, these instances will only increase. Attorney Franco has done a good thing here on our behalf.

[Sheila Possnar]

I am a Democrat but I find this kind of tactic very disgusting. If Mr Hoffers Progressive Party operates this way in elections they really need to take a step back. All the complaining about negative campaigns needs to apply here too. Remember - Karma - eventually that bad energy in the universe will come back to you.

[Matt Burge]

Mr. Francos good deeds could turn into big brother - be careful what you wish for.

[Jimmy]

Re: first comment, imitation is the sincerest form of flattery I guess - even bad imitation.

Franco's actions were implicitly, if not explicitly, approved by Hoffer. You can replace "John Franco" with "the Hoffer campaign" in every story on this issue. I guess now we'll find out what they plan to actually do with the thing, since he's been singularly silent on that point.

I'd rather have a guy who drove 0.06 over the limit working as State Auditor than a guy who said that Burlington Telecom was "doing fine and will work out the problems" two years ago, when they were clearly in a death spiral. He also curiously referred to them as "we." Of course, you'll never hear about important points like that here on the Prog house instrument - just endless stories about the release of a video of an arrest that everyone knew about a long time ago.

[Jimmy]

Oh yeah, another Franco quote from yesterday that you'd never see repeated here for obvious reasons:

"It’s no secret this was directly related to the campaign"

[Andrew Smith]

If Tom Salmon can get HIS DUI video released than I should be able to get a copy of mine, right? Mine would be a CLASSIC. I was ripped. I'd LOVE to see it. What makes him so special that he gets to take home a copy of his video and the rest of us just have to imagine what awesome things we might have done? This is is politics as usual!

[murphy]

Both Hoffer's long history of pro-tax and pro-government advocacy, and also how he is campaigning in this race, make quite clear that he is not running for this office so that he can be an impartial, neutral auditor, but because he intends to use the office for left-wing policy advocacy.

I want an auditor, not someone who is going to try to convince me that, despite all the studies to the contrary, Vermonters are actually undertaxed; not someone who is going to try to convince me that increased public spending is a good thing; not someone who is going to try to convince me that Burlington Telecom was a good idea and that the state should take over all private telecom companies in Vermont; not someone who is going to try to convince me that the public sector is good and the private sector is bad; not someone who is going to try to convince me that we should never cut public sector employment; and not someone who is going to try to convince me that we should adopt statewide IRV.

Auditor. Auditor. AUDITOR. NOT policy advocate. Policy advocacy is for the Governor's office, not the Auditor's.

[unknown]

So - you all agree then that Shumlin's video shouldn't have been released either?

[one _vermonter]

"Vermont State Auditor Thomas Salmon told a state trooper that he had two glasses of red wine the night he was arrested for drunken driving when he later said he had five drinks."

Tom Salmon - Gets drunk. Drives. Gets caught. Lies to the state trooper.

This is not a man who deserves the public's trust.

http://www.burlingtonfreepress.com/article/20101028/NEWS03/101028056/Video-shows-Salmon-claimed-he-only-had-two-drinks

[Jimmy]

No one cares. .086 means you've got about one drink still in your system. How many you had earlier in the day is irrelevant.

Franco just cost Hoffer a job, what a "pal."

[Jimmy]

"This has nothing to do with my campaign" - Doug Hoffer
"It’s no secret this was directly related to the campaign" - John Franco

Now who's being dishonest, exactly?

[sean]

"Salmon: This is not a man who deserves the public's trust."

Hey, Alleged One Vermonter, just wondering: do you apply the same standard to that well-known paragon of trustworthiness and moral rectitude Peter Shumlin? Let's see, where to start? Howbout with his attempt to use his Senate ID card and a prospective job offer as a way to get out of a speeding ticket? Is that enough for you, or shall we go on with more days-in-the-life from the man voted Most Ethically Challenged under the Dome?

I'll make a deal with you: if you don't vote for Shumlin because of his lack of trustworthiness, I won't vote for Salmon. Deal?

[sean]

http://www.vermonttiger.com/content/2010/10/deal.html

Your man's a liar. Period.

[matt Trottley]

I am not a Salmon supporter but he has always told the truth. Maybe that is why he has people swinging for him.

[one_vermonter]

Always told the truth - except when he told the trooper that he only had 2 drinks ... ??

[Jimmy]

I bet he told his kids that Santa brought them their presents too. Oh, the humanity

[Peter Mosh]

What on earth has happened to the Democratic Party in this state? This is not the party of hardworking responsible people that I grew up with. I can't believe our party would condone this kind of tactics. I am going to vote Democratic but this Hoffer condidate is an embarrassment to the Vermont Democratic Party. It is just sad.

[sean]

@ Seven Days:

How come you're not saying ANYTHING about Shumlin's duplicity about VY?

http://www.vermonttiger.com/content/2010/10/deal.html#more

http://www.wptz.com/video/25557953/detail.html

http://www.wcax.com/Global/story.asp?S=13410171

Because you favor him?

[sean]

Oh for God's sake. Your favoritism toward Shumlin is pathetic.

Guess what? Both candidates favor keeping VY operating.

But at least one of them is honest about it: Dubie.

[Liz]

Hey, look, all the commenters from the Free Press came by to visit!

[Jimmy]

God forbid the echo chamber be compromised.

[sean]

7D is a total eyes-shut-tight, fingers-in-the-ears, "la la la i cant hear you," accept-no-contradictory-viewpoints Dem/Prog echo chamber.

They've decided that Shumlin is their savior and that's that. Even though he's telling a small group of businessmen that he's been lying to his supporters about his intentions on VY.

Unbelievable. How willfully blind can you be?

[Shay Totten]

Sean: I actually did write something earlier today about the VY / VT Tiger-inspired media stories. The editors just haven't gotten around to posting it.

[sean]

Thanks. Since this important story broke on the 28th, and it's now the 30th, and there's still no mention of it on this cutting-edge political blog, we politically-incorrect paranoiacs might assume that the story's being delayed on this blog for a reason. But we'd probably be wrong about that.

[Shay Totten]

Sean: The remaining posts of mine have been edited & posted. Here's the link to the Shumlin / VY story

http://7d.blogs.com/blurt/2010/10/vermont-yankee-sale-trick-or-treat.html

Did you see the Free Press blog on this topic, too?

[matt Trottley]

This ploy by Doug Hoffer is repulsive - I still can't wrap my mind around the fact that he is the Democratic candidate.