The following article appeared in the Newport Patch on March 6, 2013 (here is a link to the original post):
Current Rhode Island DUI laws allow drivers under the age of 21 to have more alcohol in their system than drivers of legal drinking age.
A loophole in Rhode Island law allows drivers under the age of 21 to have a higher alcohol content than those of legal drinking age, something legislators are working on closing.
For adults over the age of 21 the legal limit is .08, but for drivers under 21, the limit is .10 before the charge is criminal. A bill (H5432/S0560) will be discussed this week to close the gap, as part of a number of legislative initiatives aimed at strengthening the state’s DUI laws and improve highway safety, authored by Attorney General Peter Kilmartin.
“It just makes sense that it is .08, for consistency sake, regardless of the age of the person,” said Sen. Louis DiPalma (Newport, Middletown, Tiverton, Little Compton) who is sponsoring the bill with Rep. Donald Lally (D-Narragansett).
The inconsistency was brought to light after Alexander Whitehouse, son of Sen. Sheldon Whitehouse, was arrested in Middletown on suspicion of driving while intoxicated. He registered a blood alcohol level of .091, short of the .10 limit under current law for drivers under the age of 21.
Whitehouse was able to plea to a driving while impaired charge, which is not a criminal offense. Under that lesser charge, the minimum amount of time to lose a license is 30 days, in contrast to the 90 days minimum for driving under the influence charge.
“It treats people that are younger less severely than people who are older than 21,” said local DUI Attorney Kevin Hagan. “That doesn’t make sense to people.”
Kilmartin’s DUI package is part of a trend to strengthen drunken driving laws across the state, says Hagan.
“The penalties are getting stronger every year,” said the DUI expert. “There is a heightened awareness. Statistically we have more information on it. We understand how prevalent it is.”
Hagan said an unintended consequence from this trend is that discretion is taken away from judges.
“The judges and the prosecutors are trying to seek a just result,” said Hagan. “That has a lot more to with the individual, the legal weakness or strengths in the case.”
He said as the laws get tighter, the verdict loses the human factor.
“You could put computers on the bench,” he said. “Why do you need human beings?”
The other DUI bills that will be will be heard before House and Senate Judiciary committees this week are:
H5338/S0563, introduced by Rep. Raymond Gallison and Sen. Susan Sosnowski at the request of Kilmartin, would allow the courts to order the use of an ignition interlock system as part of a sentence for those who commit alcohol-related offenses, including refusals or DUIs. Currently, the Judiciary has the statutory authority to sentence a condition of ignition interlock only on second and subsequent offenses of DUI.
The legislation allows for enhanced penalties and duration of the ignition interlock system for subsequent offenses and penalties for those who attempt to circumvent the operation of an ignition interlock system, operating a motor vehicle not equipped with an interlock system, or soliciting another person to start a motor vehicle equipped with an ignition interlock system.
“Allowing judges and magistrates the ability to order the installation of an interlock system as a condition of a sentence for an alcohol-related driving offense is in the best interest of public safety by ensuring offenders cannot drink and drive,” said Kilmartin.
Extending the “Look Back” Period to 10 Years
Introduced by Rep. Donna Walsh and Sen. Susan Sosnowski, the bill would increase the “look back” period on repeat alcohol-related offenses to 10 years. Currently it is only five years.
According to the Century Council’s Hardcore Drunk Driving Sourcebook, a majority of jurisdictions have a “look back” period of 10 years. In fact, Rhode Island is the only New England state with a “look back” period of less than 10 years. The 10-year “look back” period is supported by the National Highway Safety Administration, Mothers Against Drunk Driving and the National Hardcore Drunk Driver Project.
“Our current statute includes a dangerous loophole that allows habitual drunk drivers to be treated as first time offenders, threatening the lives of citizens on our roads every day. Moreover, by holding repeat offenders more accountable, we may also address the issues with alcohol abuse they may face and get them the help they need,” said Attorney General Kilmartin.
Driving Injury Offenses
H5379/S0565, introduced by Walsh and Sosnowski, would increase the imprisonment sanctions for driving to endanger resulting in death from up to 10 years to up to 20 years, and those in violation of driving as to endanger serious bodily injury from up to five years to up to 10 years.
The legislation would also increase the penalty range for DUI death resulting or serious bodily injury. A conviction under DUI, resulting in death would now be subject to imprisonment for five to 30 years, a fine of $5,000 to $20,000, and license revocation for five to 10 years. A conviction under DUI, resulting in serious bodily injury would now be subject to imprisonment for up to 20 years, a fine of $1,000 to $10,000, and license revocation for three to five years.
The legislation also creates the criminal offense of driving under the influence resulting in injury. This act would address the situation where injury results from driving under the influence, but does not meet the standard of “serious bodily injury.” Those in violation would be guilty of a felony and subject to imprisonment for not more than three years and have his or her license to operate a motor vehicle suspended for not more than one year.
“We do not tolerate those who get behind the wheel of a motor vehicle under the influence, and need strict penalties for those who flagrantly violate the law, risking every other person with whom they share the road. If you choose to drink and drive, and cause injury or death, you will be subject to some of the stiffest penalties in the country,” said Kilmartin.
DUI checkpoints continue to generate a lot of debate and discussion.
The latest skirmish involving DUI checkpoints comes from at least two states that are now reconsidering the legality and effectiveness of DUI checkpoints in the first place. In Utah, a bill will soon be considered by the state House of Representatives that would completely ban police from setting up DUI checkpoints, FOX 13 reports. Utah state Rep. David Butterfield, a sponsor of the bill, believes that DUI checkpoints violate citizens' rights against unreasonable searches. "The Utah Supreme Court and the United States Supreme Court have both held that they are constitutional under very narrow guidelines, but that's problematic," he said.
Similarly, WestIslip Patch reports, New Hampshire lawmakers are also considering a proposal to prohibit state police from setting up DUI checkpoints, again citing possible violations of citizen's civil rights. According to the Patch, New Hampshire lawmakers are concerned with citizens' "due process rights when they are arrested for other violations or their vehicles are searched."
Supporters of DUI checkpoints such as Mothers Against Drunk Driving argue that the tactic does improve public safety. They add that checkpoints do not violate civil rights because citizens are only detained briefly and strict guidelines govern what police may and may not do in connection with the checkpoints.
The current debate follows the discussion in many jurisdictions last year as to whether it is a good thing or a bad thing for people to spread the word that checkpoints are in place at a particular time and place. In May 2011, I wrote here about how several senators were pressing Apple, Google and Research In Motion to stop selling or otherwise making available smartphone apps that help drunk drivers avoid DUI checkpoints, asserting that such apps were "harmful to public safety."
In December 2011 I noted that police in Edmonton and Calgary, Canada, had begun asking the public to refrain from tweeting the locations of DUI checkpoints set up to catch drunk drivers, because they said doing so may put other motorists in danger. This position was not shared by police in Saskatoon, Canada, however, who took the opposite approach and even started alerting citizens themselves using Twitter as to when checkpoints were planned. The Saskatoon police believe that if people know police checkpoints are in place, they will think twice about drunk driving.
The Tiverton Police Department was busier than usual in 2010. A recently released annual statistics report indicates that the department reached a 10-year high in arrests.
While there were decreases in motor vehicle accidents and theft, Tiverton Police have reportedly increased arrests in every other statistical category. The report states that arrests totaled 655 in 2010, a 40 percent increase from 2009. Traffic-related citations jumped to 2,396 in 2010, or a 52 percent increase, and calls for service increased by 9 percent, to 19,132.
Total crimes against persons, which include assault, homicide and rape, increased 34 percent. Crimes against society, labeled “drugs and vice”, are up 102 percent. Police officials state that increase is a combination of breaks in investigations, more motor vehicle stops and "moving on contacts."
Being next to Massachusetts’ eighth largest city, Fall River, contributes to the overall increase in Tiverton's activity. The small town is second next to Newport for felony packages presented in Second District Court.
Criminal Defense issues in Tiverton are best handled by an attorney familiar with the various personnel that handle these matters. Furthermore, a thorough knowledge of the local area is required in order to gauge a potential factual defense or jurisdictional challenge.
In 2010, the Portsmouth Barracks fell under the command of Lieutenant Frank D. Sullivan III, a twenty-four (24) year veteran of the Rhode Island State Police. The Portsmouth Barracks is located at 838 East Main Road in the Town of Portsmouth. The Portsmouth Barracks complement is comprised of; one (1) Lieutenant, one (1) Sergeant, two (2) Corporals and ten (10) Troopers. Vehicles assigned to the Barracks included fourteen (14) marked cruisers. These vehicles are utilized to patrol the combined jurisdiction of approximately 359 square miles.
The Portsmouth Patrols provide service in their support and patrol of the Pell Bridge, Jamestown-Verrazano Bridge, Mount Hope Bridge and Sakonnet Bridge.
During the 2010 calendar year, members of the Portsmouth Barracks issued 4,331 citations, arrested 323 subjects, handled 139 incidents and responded to 112 accidents. Patrol members arrested 121 subjects for Operating Under the Influence of Alcohol/Drugs and/or Refusal to Submit to a Chemical Test. These numbers are exclusive of arrests made by the Portsmouth Town Police, which also constitute a high number of arrests. Having a local knowledge of the procedures and practices of this locality is essential to effectively defending the client’s legal interests.
Arrests for drunk driving account for approximately 25% of all arrests made by the Jamestown Police Department. The number of drunken driving arrests and alcohol related motor vehicle accidents has continued to rise over the past several years.
The Jamestown Police Department aggressively enforces the driving under the influence (DUI) and speed laws throughout the year with special attention to the holiday seasons as part of a statewide effort to reduce deaths and injuries on Rhode Island roads. Police agencies from across Rhode Island are out in force as part of "Operation Blue Riptide", an enforcement and education campaign funded by the State's Highway Safety Office and the New England Region of the National Traffic Safety Administration. The Jamestown Police Department works in partnership with State Police and police from neighboring cities & towns to enforce the DUI and speed laws across jurisdictions.
Throughout the year additional patrols will be assigned exclusively to enforce DUI and speed laws in the Town of Jamestown. As such, Jamestown makes a significant number of DUI arrests considering the small population that lives on the Island. Most of the Town’s DUI arrests tend to occur when the Island’s bars let out after 1 a.m. Nearby to this business area is where the Island’s two main roads intersect, and it is also the area where most DUI investigations commence. At this time of the night a vehicle will often times be stopped initially for a laned roadway violation or a speeding violation. Of course, neither of these violations by themselves will give rise to an inference that the operator is incapable of safely operating the motor vehicle.
In the vehicle in motion phase, the police officer will observe an individual’s driving behavior, and look for clues claimed by NHTSA to be consistent with impaired driving. In DWI or DUI cases, these driving behaviors include swerving, driving erratically, driving on the wrong side of the road or driving with the lights off.
In DWI or DUI investigations, the personal contact phase of the investigation takes place after the police officer has already made the decision to stop an individual and initiate an investigation. This phase includes face-to-face contact with the driver. During this phase, the police officer will attempt to gauge whether the driver is sober based on his appearance, behavior, smell, balance, coordination, his manner of speaking, and any statements he may make. DWI and DUI criminal defense lawyers know that this phase of the investigation can lead to unreliable conclusions. After all, the police officer has not previously met the suspect, so it is questionable whether he can determine what the suspect is “normally” like.
In any event, in DUI or DWI investigations, if the police officer believes that the suspect is intoxicated after phase one and phase two are completed, he may then move into phase three, where the police officer will administer standardized field sobriety tests. The tests outlined by NHTSA are standardized, meaning that they are conducted the same in all DWI or DUI investigations in Jamestown and anywhere. The three standardized tests include the horizontal gaze nystagmus test, the one-leg stand, and the walk and turn. DWI and DUI criminal defense attorney also know that problems in the administration of the test are common. A surprising number of officers do not follow the guidelines set out by NHTSA.
DWI and DUI law can be specialized and it is important to hire an experienced criminal defense attorney if you are charged with a DWI or DUI in Newport County. An experienced criminal defense lawyer will be able to aggressively challenge each phase of the police’s investigation, with the goal of achieving the best possible result in your case.
The Middletown Police Department makes more arrests for DUI than any other police department in Newport County. Therefore, it is essential to have an intimate knowledge of the roads and areas where most of these arrests occur. Bordered by Newport and Portsmouth on either side, DUI arrests in Middletown can raise issues concerning extra-territorial jurisdiction if the law enforcement officer encroaches into another municipality. Middletown, Rhode Island police officers will often times utilize the services of a Justice of the Peace to arraign DUI suspects after hours. This procedure can avail the suspect of an opportunity to obtain an independent physical examination by a physician of his/her own choosing.
Many DUI arrests in Middletown tend to occur on West Main Road, which is a heavily travelled four-lane highway with numerous retail establishments at every intersection. It may prove difficult for police officers to properly administer the standardized field sobriety tests in these areas and passing traffic can distract and interfere with the suspect’s ability to perform certain divided attention tests. In addition, Middletown has a fairly new police station, and it is necessary that a defense attorney has an idea of the layout. These issues can affect the confidentiality of phone calls and the ability of the police to have the suspect perform field sobriety tests in the station. While some police departments have ceased using in-station video surveillance, it is available and utilized in Middletown, which can often shed light on issues involving observations of the suspect.
The Middletown police force tends to be very young, but they are a well-trained and highly supervised group of officers. As a result, very few cases involving the Middletown Police actually end up at the trial stage, and the officers are generally not accustomed to testifying on a regular basis. For a DUI attorney familiar with Middletown, RI DUI arrests call Kevin Hagan, Esq. for a free consult today.
For more information about the Middletown Police Department, please visit: http://www.middletownri.com/documents/mpd/Services.php
Fax: (401) 846-0175
Hours: General business hours, 8am - 4pm. Other hours for certain programs may vary by service. For more details, please visit http://www.middletownri.com/documents/mpd/Services.php
Handicap Accessible: Main entrance from parking lot.
Founding Date: 1/1/1922
Services: Anonymous Tip Line: (401) 842-6516 A full listing of services is available at: http://www.middletownri.com/documents/mpd/Services.php
Parking: Free lot
Public restrooms: Yes
Bureaus: Detective, Traffic
But the simple fact that alcohol in the blood begins dissipating when a person stops drinking does not qualify as such a circumstance, the high court decided in a case out of Cape Girardeau County.
Assistant prosecutor Jack Koester said he would appeal to the U.S. Supreme Court because of a split in how states have interpreted the federal court's 1966 ruling in a case on warrantless blood tests. In Iowa and Utah, for example, the state supreme courts ruled that dissipation of alcohol in the blood doesn't qualify as a special circumstance, but the high courts in Wisconsin, Oregon and Minnesota all ruled that it does.
"It's a bit of a long shot, because there are a lot of petitions filed every year and the Supreme Court only takes a small percent," Koester said. "But hopefully the court will think it's a worthwhile case and will weigh in on the issue."
Siding with the defendant in a routine 2010 stop for suspected drunken driving, Missouri's high court ruled that the man was subjected to an unconstitutional search when a hospital employee drew his blood on orders from a Missouri State Highway Patrol trooper without a warrant. The man had refused a road-side breath test.
The Missouri justices wrote that there must be "exigent circumstances under which the time needed to obtain a warrant would endanger life, allow a suspect to escape or risk the destruction of evidence."
The court pointed to the same U.S. Supreme Court ruling in 1966, in Schmerber v. California, which carved out "a very limited exception to the warrant requirement for a blood draw in alcohol-related cases." In that case, the blood test was delayed because the officer first had to investigate a serious accident involving a suspected drunken driver and get the injured defendant to a hospital. Stopping to get a warrant would have delayed the blood test even more.
But in the Missouri case, there was no accident, and the trooper who stopped the driver at 2:08 a.m. took him directly to a hospital, where blood was drawn at 2:33 a.m. That scenario means there were no special circumstances, the Missouri court wrote.
"Defendant's case is unquestionably a routine DWI case," the court wrote in upholding a trial judge's suppression of the blood-test evidence.
Cape Girardeau attorney Stephen C. Wilson, who represented defendant Tyler McNeely, said the county prosecutor there has created a system that makes it simple to get a judge's warrant for a search.
"We showed six cases in which they got a warrant in under two hours in the middle of the night," Wilson said.
The smell of alcoholic beverages on the defendant's breath is almost always described by the police as a "strong" smell. In fact alcohol itself is nearly odorless and the source of smells are other ingredients in the alcoholic beverage. Some differences do exist in the smells of various types of alcoholic beverages on the human breath, but beer can be mistaken for types of wine, bourbon for scotch, etc. In cases of unquestionable intoxication, a strong smell of alcoholic beverage is usually found associated with distorted speech, poor balance, poor comprehension, or the inability to locate or identify items such as a driver's license. In cases of questionable sobriety, there will be some hint of speech, balance, or comprehension problems along with the smell of alcoholic beverages on the defendant's breath. However, testimony on such matters by a policeman who is not familiar with the defendant's actions and habits when completely sober does not establish that the defendant was intoxicated.
Details of arrest procedures are of special interest to the defense to ascertain whether the police hesitated too long in making the arrest or allowed the defendant to drive after an accident. Such facts tend to refute the arresting officer's opinion that the defendant was intoxicated. A closely related fact to be investigated relates to the time when the police allowed the defendant to post bond and get out of jail. If the defendant was allowed bond within a comparatively short time after his arrest, this fact also tends to refute the arresting officer's opinion of intoxication, since the police generally do not release an intoxicated person onto the public street.
Expert testimony on field sobriety tests: Trial court abused its discretion in restricting the direct testimony of defendant's expert witness on field sobriety tests, National Highway Traffic Safety Administration (NHTSA) rules, and the consequences of failing to comply with NHTSA training, where arresting officer conducted horizontal gaze nystagmus (HGN) test and testified in detail regarding the positions and timing of an involuntary jerk in defendant's eyes while following a prescribed pattern of testing, which he asserted showed that defendant was under the influence of alcohol, and where State relied entirely on officer's testimony regarding his field sobriety evaluation to prove its case. James v. State, 260 Ga. App. 536, 580 S.E.2d 334 (2003).
Alternatively, a suspect may be asked to put his finger to his nose, to balance on one foot, perhaps with the eyes closed, to balance on a narrow stool, to stand or walk heel to toe, to work mathematical problems, or to do any other task where the results are thought likely to corroborate police opinion of intoxication. However, the successful or unsuccessful accomplishment of any of the above tasks indicates little or nothing regarding intoxication in the light of individual performance differences and the effect of various medical conditions on performance.
The police have sometimes shone a light into the eyes of a suspect and testified that the manner of the contraction of the pupil indicated intoxication. However, medical authorities do not presently consider the manner of contraction of the pupil to have substantial relationship to intoxication, at least when the suspect's normal reaction is not known.
The arresting officer's testimony as to the slowness of the pupils to react may be easily discredited as a valid intoxication test if the arresting officer had no mechanical means of timing the slowness of pupil reaction. It also is apparent that the officer is not qualified medically to distinguish other conditions that might cause slowness of pupil reaction. The following cases shed light on the various legal issues surrounding the field sobriety tests. Read More...
Depending on state law, the attorney may or may not be able to help his client retain his driver's license and vehicle registrations. In some states the trial judge decides the matter of revocation or suspension and, in this situation, the attorney may be able to minimize the penalty. In other states, the period of suspension is automatically set by law or the state highway patrol organization is given the right, within certain limits, to determine the length of the suspension. In many jurisdictions, such as Rhode Island, the revocation of a driver's license is mandatory on conviction for driving while intoxicated.
In light of the fact that the minimum license suspension for refusing to submit to a chemical test in Rhode Island is six (6) months, and the minimum license suspension for criminal DUI is three (3) months, DUI clients often have a difficult decision to make. Do they opt for one or the other, or should they risk challenging both cases based on a factual or legal weakness in the case? Rhode Island DUI lawyers are accustomed to weighing the pros and cons of these relative decisions. Read More...
Rhode Island’s statute defining the offense of driving while intoxicated requires that the defendant exert some type of control over the vehicle. If a question exists concerning such control, the defense attorney should certainly investigate the matter. Also, the place where the vehicle was observed in operation is very important. Many statutes prohibit the operation of vehicles by an intoxicated driver only on certain types of public property. If any reasonable question exists as to the public character of the property, the defense attorney should consider the use of surveyors and title attorneys, if necessary, either to prove the private character of the area where the vehicle was operated, or to create reasonable doubts as to its public nature. Read More...
1. That the subject was legally arrested for driving while intoxicated prior to the demand for the test;
2. That the operator of the device was properly trained and licensed;
3. That the operator and the device were under adequate supervision by an expert;
4. That the chemicals used were compounded properly;
5. That the test was administered in accordance with the test methods directed by the state agency that supervises intoxication test results.
6. That nothing alcoholic was in the subject's mouth for 15 to 30 minutes before the test;
7. That the person interpreting the results of the test was qualified to do so; and
8. That the reading of blood-alcohol content showed a violation of the state statute creating a presumption of intoxication. Read More...
"In a RI DUI case, the attorney of record should have an in depth knowledge of the constitutional requisites for the admissibility of evidence."
In jurisdictions where previous driving-while-intoxicated convictions enhance the penalty, the arresting officer normally does not know whether the conduct observed in the instant case constitutes a misdemeanor or felony violation, and will not know until the suspect's record has been checked. Consequently, it would seem that good police procedure in these jurisdictions should entail the giving of constitutional warnings as soon as an arrest is made in any driving-while-intoxicated case. In an RI DUI, DWI, or driving under the influence prosecution, the police will read the suspect their “Rights for use at scene, which is essentially the equivalent of “Miranda” Rights. Read More...
"A majority of DUI and DWI arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect's conduct by the arresting officer."
Currently, traffic safety proponents are urging that a police officer be authorized by statute to make a misdemeanor arrest for driving while intoxicated where the crime was not committed in his presence but where, after personal investigation, he finds reasonable grounds to believe that the person did commit the offense. These traffic safety people believe that such increased authority in the area of arrest would be helpful in the investigation of traffic accidents in which it is apparent that one driver was intoxicated but where the officer did not observe the accident.
In a few cases, a charge for driving while intoxicated may be filed solely on the basis of the complaint of a private citizen, and the police fear that the suspect is about to flee the jurisdiction. In these situations, whether a warrant must be issued to make a misdemeanor arrest, or whether the police may make a felony arrest without a warrant on the ground that there is insufficient time to secure a warrant depends on whether the suspect is still intoxicated at the time he is approached by the police. Of course, if some action occurs in their presence that gives them probable cause to stop him, the police may make a valid arrest without a warrant. However, if the suspect is not still intoxicated, and the police are not certain that a felony is involved, a warrant must be secured unless one of the police officers knows of previous convictions of the suspect that would raise the instant offense to a felony level. Consider the following cases: Read More...
"In a Rhode Island Drunk Driving, DWI, DUI prosecution, a criminal defense attorney should always attempt to prove the incompetent administration of field sobriety tests."
Results of field sobriety tests did not provide probable cause to arrest motorist for driving under the influence of alcohol (DUI), where city police officer administered the tests incompetently and in ways that could completely undermine their reliability; for example, National Highway Traffic Safety Administration (NHTSA) required minimum of 32 seconds for horizontal gaze nystagmus (HGN) test and minimum of 12 seconds for vertical gaze nystagmus (VGN) test, but officer performed the tests in 19 seconds and 3.5 seconds, respectively, and officer also did not comply with NHTSA standards for administering one-leg stand test and walk-and-turn test. U.S.C.A. Const.Amend. 4. Strickland v. City of Dothan, AL, 399 F. Supp. 2d 1275 (M.D. Ala. 2005); West's Key Number Digest, Automobiles 349(6).
Administering a breathalyzer test and having a defendant perform the field sobriety test on videotape after a DUI arrest are nothing more than the collection and preservation of physical evidence, and they do not constitute a crucial confrontation requiring the presence of counsel. State v. Burns (1995, Fla App D5) 661 So 2d 842, 20 FLW D 1942.
Exclusion of the results of driver's blood alcohol test and DUI videotape on relevance grounds was reversible error, where driver who had been arrested on a DUI charge sued officer for false arrest, and after a jury verdict for officer, contended that the test results and the videotape made 2 hours after her arrest were relevant and should have been admitted. Tracton v. Miami Beach (Fla App, 1992) 616 So 2d 457, 18 FLW D 86.
Admission of videotape of defendant's arrest did not violate defendant's right to privacy in prosecution for driving under the influence (DUI), where videotape captured defendant's actions on a public street. State v. Ditton, 2006 MT 235, 333 Mont. 483, 144 P.3d 783 (2006); West's Key Number Digest, Automobiles 354(6).
Videotape of defendant's police station booking was relevant evidence in prosecution for driving under the influence of alcohol (DUI); videotape showed defendant walking and talking, and jury might have found videotape useful to determine whether defendant was intoxicated. N.R.S. 48.015. Angle v. State, 942 P.2d 177 (Nev. 1997). Read More...
"How recent interpretations of Confrontation Clause and hearsay rules will impact admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…"
Court of Appeals of Virginia,
Phillip Lawton GRANT v. COMMONWEALTH of Virginia.
Record No. 0877-08-4.
Sept. 1, 2009.
Background: Defendant was convicted in the Circuit Court, Fairfax County, Bruce D. White, J., of driving while intoxicated. Defendant appealed.
Holdings: The Court of Appeals, Petty, J., held that:
(1) attestation clause in certificate memorializing the results of a blood test was testimonial in nature, and its admission violated the Confrontation Clause, and
(2) admission of certificate in violation of Confrontation Clause was not harmless error, and required reversal.
Reversed and remanded.
Present: FELTON, C.J., and FRANK and PETTY, JJ.
*716 Appellant, Phillip Lawton Grant, challenges his conviction for driving while intoxicated, in violation of Code § 18.2-266. Grant argues that his conviction should be reversed because the certificate of the results of a chemical analysis of his breath indicating his blood alcohol level was admitted into evidence in violation of his Sixth Amendment right to confront witnesses against him.FN1 **86 For the reasons explained below, we agree with Grant and reverse his conviction.
FN1. Grant's question presented on appeal is:
Whether the trial court erred by denying appellant's motion to exclude from evidence, or alternatively to strike from evidence, the certificate of analysis because the Commonwealth failed to comply with appellant's timely “Notice of Defendant's Exercise of Confrontation Rights Pursuant to Va.Code 19.2-187.1.”
While both parties argued that the statutes governing the admissibility of the breath test certificate are Code §§ 19.2-187 and 19.2-187.1, the express statutory authority for the admission of a breath test certificate is set out in Code § 18.2-268.9.Code § 19.2-187 is limited to certificates of analysis prepared by the Division of Consolidated Laboratory Services, the Department of Forensic Science, and certain other enumerated laboratories. Further, Code § 19.2-187.1 only provides for a right by the defendant to examine persons performing analysis pursuant to Code § 19.2-187. It does not appear that the Fairfax County Adult Detention Center is one of the laboratories enumerated in Code § 19.2-187. However, whether the parties and the trial court relied upon the correct statutory scheme addressing the admissibility of the breath test certificate is not before us in this appeal. Therefore, we assume without deciding for the purposes of this opinion that Code § 19.2-187.1 is applicable to this case.
"In Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections under the law."
In cases where the police should have recognized that the cause of the apparently intoxicated behavior was not alcohol, but was instead a medical condition from which the subject was suffering, a cause of action may exist against the police for failure to assure that the defendant was immediately delivered to a hospital for medical treatment. Of course, it becomes very important to provide alternate reasons for the suspect’s failure to properly perform standardized field sobriety tests.
In one Federal case, officers had probable cause to arrest motorist at roadblock, and such seizure did not violate his civil rights, where officer received report that possibly intoxicated driver was slumped over steering wheel of vehicle parked on shoulder of interstate, motorist's appearance indicated that he had been drinking, motorist declined to answer officer's questions and drove away without explanation, motorist failed to stop when officer engaged his emergency equipment, bumped motorist's vehicle,and shot out his tires, and motorist swerved to prevent officer from passing him. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983. Latta v. Keryte, 118 F.3d 693 (10th Cir. 1997). Read More...
"Pursuant to Rhode Island Drunk Driving, DWI and DUI procedures, a driver is entitled to refuse to take a chemical test upon the request of law enforcement."
This blog entry also discusses the application of chemical tests to suspects that are unconscious or in such a medical state that the test is administered for purposes of medical treatment, rather than strictly for law enforcement purposes.
All fifty states and the District of Columbia have enacted statutes authorizing the admission in evidence of the results of chemical intoxication tests. These statutes are commonly referred to as "implied consent laws"; they generally declare that driving is a privilege subject to state licensing, with one of the conditions for obtaining a license that the driver submit to a test for intoxication on request. The police must have probable cause to request a chemical intoxication test. Because of differences in language among the state statutes, it is necessary for counsel to consult his state's statute and to refer to supportive case decisions to ascertain the full rights of his client respecting submission to these tests.
Differences in statutory provisions include such matters as sanction or the lack of sanction for refusal to submit to a test, admissibility as evidence of the fact of refusal to submit to test, the type or types of tests that can be made, whether the police or the defendant can choose the type of test to be administered, the qualifications of the persons who give or supervise the tests, the predicate that must be laid for the introduction of results of the tests, whether the defendant is entitled to his own independent test in addition to the one administered by the police, and whether a dead, unconscious, or disabled person may be tested without permission. Implied consent statutes ordinarily do permit the person tested to have a physician of his own choice administer a chemical intoxication test in addition to the one administered at the direction of the police.
The refusal of a motorist to submit to a chemical intoxication test generally constitutes grounds, under implied consent statutes, for the suspension or revocation of his driver's license. In most states, acquittal of the charge of driving while intoxicated does not preclude revocation or suspension of the motorist's license for refusal to submit to the test. However, the motorist generally has a right to a hearing on the question of the reasonableness of his refusal to submit to the test before his license may be revoked or suspended. Currently, the States of Texas, Wisconsin, Mississippi, and North Carolina do not penalize the driver for refusing to submit to the test if a driving while intoxicated case is dismissed or there was a finding of not guilty. Read More...
One or more scientific tests presently are conducted in all jurisdictions on driving-while-intoxicated suspects for the purpose of (1) bolstering and corroborating police opinion testimony of intoxication and, (2) in those states that set presumptive blood-alcohol intoxication levels, to demonstrate that the defendant's blood-alcohol level exceeded the permissible. Use of evidence of blood-alcohol concentration helps standardize the opinions of experts and minimizes reliance on the traditional evidence of intoxication on which opinions can vary so widely. Where a scientific test has been made on the defendant, it often is the main weapon of the prosecution, with all other evidence being used to corroborate the test results.
There are four basic scientific tests which may be conducted to determine the degree of intoxication: blood, urine, breath, and saliva tests. The results of urine, saliva, and breath tests for alcohol must be converted into a blood-alcohol reading in order to be useful in determining whether the subject was intoxicated. Read More...