August 2011

"Establishing Sobriety of the Client in a Rhode Island DUI or DWI Case"

The investigation should cover facts establishing the extent of the client's intoxication from all available witnesses in as much detail as possible. The state of the defendant's sobriety, not what any scientific test may declare the defendant's blood-alcohol percentage to be, must be kept in mind at all times, since all tests are subject to failure.

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).