B.A.C.
"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."
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. Of course, this almost always gives rise to a “refusal” charge being levied against the suspect. In Rhode Island, a criminal defense attorney will often times utilize this refusal charge as leverage to obtain a dismissal in the criminal DUI matter. In light of the fact that a refusal charge is civil in nature as opposed to criminal, it is often a more favorable result to admit to the refusal charge in consideration of the criminal charge being dismissed. This practice has reached customary status among Judges and prosecutors across Rhode Island.
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...
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...
"Rhode Island DWI or DUI charge usually falls into one of two categories"
A Rhode Island DUI or DWI charge is defended against differently depending on whether a suspect agreed to take the chemical test or whether they refused. Once a suspect has agreed to take the test, and performs above the requisite blood alcohol level for intoxication, a criminal defense attorney must focus on attacking the admissibility of the subject test.
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...
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...
"A trial on a charge of driving while intoxicated may raise constitutional issues"
A trial on a charge of driving while intoxicated may raise constitutional issues, such as whether there was probable cause for the arrest, whether adequate warnings were given to the suspect as to his rights, whether there was an intelligent waiver of rights, whether there was duress sufficient to raise a defense of self-incrimination, and whether there might have been a violation of equal protection and due process guarantees. The various constitutional questions noted above are necessarily left largely unanswered, because few of such questions have been satisfactorily answered by the courts in the context of prosecutions for driving while intoxicated. Decisions of the United States Supreme Court on these constitutional issues have been rendered in cases involving felonies such as murder, burglary, theft, and possession of narcotics, but the application of such decisions to driving-while-intoxicated cases are not always clear in most instances. Read More...