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The Court has Discretion to Impose a Condition of Release Prohibiting Contact with Victims, Regardless of Extraordinary Circumstances or Less Restrictive Alternatives

In State v. Cushing, 2015 VT 114 (August 25, 2015), the Vermont Supreme Court upheld a no contact condition of release in a case of domestic assault.

Issue: Defendant challenged a no contact condition of release claiming that: 1) it was not the “least restrictive” condition that would reasonably assure protection of the public under 13 V.S.A. § 7554(a)(2); 2) it was a “physically restrictive” condition imposed without “extraordinary circumstances” as required in 13 V.S.A. § 7554(a)(2)(D); and 3) the court failed consider factors listed in 13 V.S.A. § 7554(b).

Holding: The Court rejected the first two arguments, which were brought under 13 V.S.A. § 7554(a)(2), because 13 V.S.A. § 7554(a)(3) authorizes no contact conditions without any requirement for “least restrictive” conditions or “extraordinary circumstances.” It also rejected the argument that the trial court failed to consider certain factors listed in 13 V.S.A. § 7554(b). Noting that the trial court does not have to mention every factor that was not critical to its decision, it held that the trial court did not exercise discretion in a clearly untenable manner.

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