January 2012

Jamestown, Rhode Island DUI - DWI - OWI

Since the creation of a permanent police department in 1958, the Jamestown Police Department has grown to a size of 14 sworn officers and 5 civilian employees. In addition, there is also a harbormaster, an assistant harbormaster, a parking enforcement officer, and an animal control officer that work out of the police station. However, these are all civilian positions.

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.

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.

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.

Middletown, Rhode Island DUI - DWI - OWI

The Middletown Police Department makes DUI enforcement and roadway patrol priorities for this town of 18,000 residents. Besides the typical criminal and complaint investigations, traffic enforcement and accident reports, the Middletown Police Department serves the community by providing Animal Control, VIN checks, a Child Identification Program, Child Safety Seat Installation assistance, Citizens Police Academy, Community Policing, a local D.A.R.E school program chapter, Elderly Advocacy, Fingerprinting services, Vacant House Check services, Identity Theft prevention services and provides patrol car escort details as well as funeral escorts. The Harbor Master department also falls under the jurisdiction of the Middletown Police Department.

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:

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

Wi-Fi: None

Auxiliary: Yes

Bureaus: Detective, Traffic

Rhode Island Speeding Violations

In general, Rhode Island has three different types of speed limits. These are called, respectively, "absolute," "presumed," and "basic" speed limits. In order for you to put up the best defense possible if you want to challenge your speeding ticket, it is important for you to know which one you were cited with. Rhode Island also has statutes that provide for license suspension and other enhancements if the motorist has accrued a certain number of violations within a given time period. Additionally, these enhancements can vary based on the nature of the violation in question. The newly enacted “Colin Foote’s Law” is a prominent example of such an enhancement statute. In Rhode Island, license suspension may also be indefinite if the Traffic Judge makes factual findings regarding the danger of a particular motorist.

Speed Limits that are Absolute

Many people wonder how to fight a speeding ticket, especially a traffic violation for going above the absolute speed limit. An absolute speed limit is quite straight forward -- if the posted limit is 40 mph, then that is the absolute limit. If you are going 45 mph, you are violating the absolute speed limit. There are limited defenses for such a ticket, but some of them include:

  • Claim that you were speeding because of an emergency. The emergency must have made you speed in order to avoid serious injury to yourself or others. An example of a good defense would be if you were forced to speed because you had to outrun the firestorm that was raging down the road, engulfing everything in flame.

  • Challenge the determination of your speed. A traffic ticket will often have your tracked speed written down on it, and you have the right to challenge this statement. To make this defense, you must first determine what method the officer used to determine your speed (laser, pacing, sight, radar), and then either attack the method used or the officer's implementation of that method (such as challenging the officer's training with the device).

  • Challenge the officer's identification of your automobile and claim that you were mistaken with a similar car that was driving next to you at the time of the ticket. Many cars look very similar, and it could be easy for the officer to mistake your car for the one he clocked speeding after losing sight of it over a hill.

Fight a Speeding Ticket under a Presumed Speed Limit

If you have been given a ticket under a presumed speed limit, this means that the officer accused you of driving at an unsafe speed for the conditions present at the time. There are two general defenses to such a ticket. First, you can challenge the officer's claim that you were driving above the posted speed limit, just as if you were challenging an absolute speed limit violation. However, you can also claim that, even if you were driving above the posted speed limit, your driving was safe for the conditions at the time of the ticket.

Here is one example. If you were ticketed for going 45 mph in a 35 mph zone and there is little chance of proving that you were not going 45, you could claim that you were driving safe given the conditions. Perhaps the traffic around you was traveling at 50 mph or above and you felt that you would be a danger on the road if you were going 35 mph and did not want to get read-ended by a speeding car.

If you decide to take such an approach to challenging your speeding ticket, you will have the burden of proving that the speed you were driving at was a safe speed given the conditions. It is generally assumed that the posted speed limit is the safest maximum speed for any given stretch of road, so you will have to overcome this presumption to be successful.

It could be nigh impossible to show that going 60 miles per hour in a 25 mph area is safe, but it could be possible to show that going 35 mph in a 25 mph is safe given certain conditions. Perhaps the road is very wide and straight, and the only reason the speed limit is 25 mph is because of pressure put on the city government by wealthy residents. In these situations, you may have a strong argument.

In order for you to build the best case possible, it is helpful to have certain pieces of evidence to present to the judge. First, you should go back to the scene of the ticket at the same time of day you got the citation and take pictures, both from the sidewalk, as well as from a driver's point of view. The more that you can show it is safe to go above the speed limit on a certain stretch of road, the better.

Next, you should be able to diagram the section of road where you were ticketed, and demonstrate any other factors that would be beneficial to your case on the diagram. For instance, if you can show that you got your ticket on an open stretch of road between two cities instead of in a busy downtown area, you have a strong chance of showing that your speed was safe given the situation. Also, if you can show that the road was heavily congested at the time of your ticket, and that all the cars around you were exceeding the posted speed limit, you can argue that you would be a danger on the road if you had to obey the absolute speed limit.

Basic Speed Limits

The general premise of a basic speed limit law is simply the reverse of a presumed speed limit, like a presumed speed limit that works in favor of police officers. Police officers can ticket you for driving at a speed under the posted speed limit if the conditions make it so that your speed is unsafe.

Often, it is possible to argue that the posted speed limit on a road is above what the safe speed limit is. Rainy, snowy or windy conditions can make driving more dangerous and could possibly reduce a presumed speed limit from 65 mph to 50 mph in the officer's mind. Police officers have discretion to ticket drivers for driving at or below a posted speed limit if the conditions make it unsafe.

However, if you have been ticketed for driving at or below the posted speed limit, you will be afforded extra protections should you decide to challenge the ticket. The biggest difference is that instead of you having to prove that you were driving at a safe speed given the conditions, the officer must instead prove that, given the conditions, the speed you were driving at was unsafe. This may be hard for the officer to do if you were not involved in an accident. After all, the legal presumption is that the posted speed limit is the safe speed to travel at.

Police often cite people who have been involved in car accidents with speeding tickets according to the basic speed limit. Their logic follows like this -- if you were involved in a car accident, there was something that must have been unsafe, and it was probably your speed. However, don't panic if you receive a traffic ticket on top of being in a car accident. The logic is flawed -- there can be a number of other reasons for the car accident, even another driver.

If the officer accuses you of violating the basic speed limit and uses the accident as proof of the "unsafeness" of your speed, you can and should challenge him on this. Ask the officer if there could have been any other factors that caused the accident. These could include:

  • An act of nature such as a gust of wind that blew over the truck next to you, or the falling tree that you had to swerve to avoid

  • The reckless or negligent driving of another person on the road

  • A road defect such as a pothole, a missing stoplight, or a stop sign that had been stolen recently.

Most Rhode Island Traffic Violations are adjudicated at the Rhode Island Traffic Tribunal. Having knowledge about the procedural mechanisms at this Court is vital to effectively representing the client.

"Mo. court rejects warrantless DWI blood test"

Law enforcement officers must get a warrant before ordering a blood test on an unwilling drunken-driving suspect except during special circumstances when the delay could threaten a life or destroy potential evidence, the Missouri Supreme Court ruled Tuesday.

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.

"Rhode Island DUI Field Testing"

The National Highway Traffic and Safety Administration (NHTSA) designed three standardized testing methods that can be implemented by law enforcement officers nationwide and are used to assess a person's level of intoxication. These are known as field sobriety tests and they are simple ways of testing the physical and cognitive skills of any individual who has been suspected of driving under the influence.

The Horizontal Gaze Nystagmus (HGN) test is often the first one used to assess a person's level of intoxication. Horizontal gaze nystagmus is the term used to describe the involuntary jerking of a person's eye which can occur when one's gaze is cast to the side. Nystagmus is used as an indicator of impairment because it becomes exaggerated when intoxicated and can occur at lesser angles than those that would normally provoke an eye jerk. Typically, an officer will move a flashlight or lighted pen and ask the suspect to follow the light with their eyes. This allows the officer to track the eye movement of the suspect and identify whether or not they are able to accurately follow a slowly moving object without any eye jerking or deviation. When an individual is unable to complete the light tracking without faulty eye movement, officers may have further reason to assume that the suspect has been driving under the influence. While NHTSA research has found that about 88% of persons who show signs of horizontal gaze nystagmus are also intoxicated, it cannot be assumed that this is the only cause. The failure in this test lies in the fact that nystagmus is a common clinical condition that plagues several thousand people throughout the U.S. Furthermore, it often goes unrecognized and undiagnosed. Therefore, it could be argued that the field sobriety test involving HGN is not a great way to identify intoxication, as the results of the test could simply signify that the person suffers from a nystagmus condition.

The second standardized test used by police officers during a roadside check for sobriety is the Walk and Turn test. This is a type of "divided attention" test which requires a driver to utilize both listening/ comprehension skills as well as physical capabilities; the theory being that impaired persons are unable to divide their skills between mental and physical tasks. When a suspect is directed to perform the Walk and Turn test they will be asked to take heel-to-toe steps along a straight, linear path. After a certain amount of steps have been taken in one direction, the individual will then be asked to turn around on one foot and repeat the heel-to-walking in the other direction. Among the indicators that officers will be looking for during this type of test are a suspect's ability to keep balance, turn properly, take the correct number of steps in the correct way (i.e. heel to toe), stay on the linear path, walk the line without using arms to balance, and listen to and follow instructions properly. However, it can be more than difficult for even unimpaired individuals to successfully follow some of these procedures. Therefore, relying on the indication of two more of these signs for confirmation that a person's cognitive and mental skills are impaired is an unsafe way to determine impairment.

The third of the standardized tests is the One Leg Stand test. Like the Walk and Turn test, this is one that focuses on the ability of person to utilize their divided attention skills. Upon being pulled over, an officer may ask the driver to stand with one foot on the ground while the other is held approximately six inches off the ground. At the same time, suspects will be asked to count by thousands while the officer conducting the test records signs of impairment for a period of 30 seconds. During this timed event, law enforcement officials will be looking for indicators such as swaying, unsecure balance, hopping to maintain stance, using arms to help with balance, and putting your raised foot down. According to NHTSA, a little over 80% of persons who exhibit two or more of these behaviors during their performance of the One Leg Stand will have a blood alcohol concentration level above the legal limit. Again, what is failed to be mentioned is the fact that this can be a less than easy task for anyone, sober or not. Some people naturally have a more difficult time maintaining their balance in even the most normal of circumstances, making an on-the-spot test of balance one that could yield inaccurate results.

The inadequacy of these standardized tests has not failed to be recognized. In fact, other non-standard tests have been put in place to supplement those implemented by the National Highway Traffic and Safety Administration. The Rhomberg Stationary Balance Test requires drivers to stand with feet together while leaning back to look up at the sky and holding their arms out to the side. The Finger-to-Nose Test asks suspects to close their eyes and then touch their nose with their pointer finger. These, along with standardized test methods, are believed to be the clearest ways to quickly identify alcohol or drug impairment. Unfortunately, they are also tasks which many non-intoxicated individuals would be unable to complete if asked to do so. Therefore, their accuracy is less than reliable and should not be used as a primary source of intoxication identification. If you have recently been arrested based on your performance of a field sobriety test such as those described above, then you should most definitely challenge the charges that have been brought against you. With the help of a DUI defense attorney you can use the inaccuracies of these methods to prove that your DUI arrest was not founded on sound evidence and should not lead to a conviction.

"DUI Chemical Testing and Breathalyzer Challenges"

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.


Confrontation Clause challenges to lab reports: Toxicology data generated by lab machines from testing of defendant's blood sample, indicating that defendant's blood contained phencyclidine (PCP) and alcohol, did not constitute "hearsay" evidence, subject to the Confrontation Clause, in prosecution for operating a motor vehicle while under the influence of drugs or alcohol, as the machines were not persons or declarants within the meaning of the hearsay rule. U.S.C.A. Const.Amend. 6; Fed.Rules Evid.Rule 801(c), 28 U.S.C.A. U.S. v. Washington, 498 F.3d 225, 74 Fed. R. Evid. Serv. 332 (4th Cir. 2007), petition for cert. filed (U.S. Dec. 14, 2007)

In People v. Superior Court (1972) 6 Cal 3d 757, 100 Cal Rptr 281, 493 P2d 1145, defendant, who had been in an automobile accident but had not been arrested, was awaiting emergency treatment in a hospital and he signed, at a police officer's request, a written consent authorizing the taking of a blood sample for purposes of a blood-alcohol test. The Supreme Court of California rejected the People's contention that the taking of a blood sample in a medically approved manner but without consent does not violate the Fourth or Fourteenth Amendments where there is probable cause to arrest, even though the taking is not pursuant to a search warrant or incident to a lawful arrest. The court disapproved several appeal court decisions insofar as they were inconsistent with this opinion and observed that the taking of a sample under the state implied consent law is expressly conditioned on a lawful arrest for driving under the influence of intoxicating liquor and upon the reasonable belief of the peace officer that the arrestee was, in fact, so driving. The Supreme Court noted that the burden of justifying the taking without a search warrant had not been met, since evidence sustained the trial court's determination that the consent, the only justification offered by the People, had not been free and voluntary.

A compulsory seizure of blood for a blood-alcohol test, without a warrant, is permissible if the procedure (1) is done in a reasonable, medically approved manner, (2) is incident to a lawful arrest, and (3) is based on a reasonable belief that the arrestee is intoxicated. Thus, the lack of informed consent did not make the withdrawal of blood from a driver arrested for driving under the influence of alcohol an unreasonable seizure, where the sample was taken at the police station without the driver's consent but without force, by a licensed clinical technologist, using a standard procedure and materials obtained from a local hospital. Withdrawal of a blood sample from a driver arrested for driving under the influence of alcohol at the police station without his consent, but without force, by a licensed clinical technologist using a standard procedure and materials obtained from a local hospital, did not deviate so far from reasonable medical practices as to constitute a constitutionally impermissible seizure. Thus, the municipal court did not err in dismissing the driver's motion to suppress the blood sample. The technologist certified the procedure used was medically approved; the technologist was described by his supervisor as "an outstanding phlebotomist"; apart from the issues of consent and authorization, defendant did not object to the manner in which the blood was withdrawn; and nothing suggested that performing the test in a jail rather than a hospital was unsafe or unsanitary. The seizure was not unreasonable per se merely because no injury or accident was involved or because of the misdemeanor nature of the offense. Given the seriousness of the threat posed by drunken driving, the fact that defendant was charged with driving with a blood-alcohol level of.08 or greater, and the evidentiary value of a blood test in such a prosecution, the community's need for evidence outweighed defendant's interest in privacy and security. People v. Ford (1992, 6th Dist) 4 Cal App 4th 32, 5 Cal Rptr 2d 189, 92 Daily Journal DAR 2757, review den (May 21, 1992).

In prosecution for driving under influence of alcohol, felony hit and run, and vehicular manslaughter, police officers were not required to obtain search warrant to forcibly extract blood sample from defendant's arm, where defendant, arrested for felony drunk driving, refused to provide sample of blood or urine so that his blood alcohol level could be determined and where defendant was under arrest, probable cause existed for taking blood and facts presented type of emergency situation in which there was no need for warrant; further, police officers did not violate defendant's due process rights, where officers used only that degree of force reasonably necessary to overcome defendant's combativeness and where withdrawal of blood was accomplished in medically approved manner. Carleton v. Superior Court (1985, 4th Dist) 170 Cal App 3d 1182, 216 Cal Rptr 890.

Drivers' consent to an alcohol breath test was not voluntarily given, where after being arrested for DUI, each driver submitted to a breathalyzer test after being informed of the implied consent warnings that if they failed to submit to an approved chemical test, their drivers' licenses would be suspended and evidence of refusal would be used at trial, but when it appeared that the intoximeter had been substantially modified and the modified instrument had not been recertified, drivers argued that their consent had not been voluntary, and that the results of the tests should be suppressed, because the changes were so substantial that the instrument required full recertification; additionally, since consent was based on misinformation that the chemical test was by an approved instrument consent was not voluntary. State v. Polak (1992, Fla App D1) 598 So 2d 150, 17 FLW D 1014.

Substantial evidence supported finding that officer complied with statutorily required 20-minute observation period before administering breath alcohol test; officer testified that he began observing defendant at 11:13 p.m. and administered the test beginning at 11:36 p.m., despite fact that jail records indicated defendant was admitted at 11:22 p.m., jailer testified that person admitting defendant probably took log-in time off of the computer screen in admission room, and that jail made no efforts to synchronize computer clock and intoxilyzer clock, Intoxilyzer Instrument Printer Card, which documented the testing of defendant, included officer's handwritten notation, "Observation Began at 2313 hrs", and printer card contained computer printout line stating "Subject Test.223 23:36 EDT". 500 Ky.Admin.Regs. 8:030 § 1(1). Eldridge v. Com., 68 S.W.3d 388 (Ky. Ct. App. 2001)

Noncompliance and refusal: A driver's act in not blowing into a breath testing machine and by blowing around the mouthpiece to prevent the necessary quantity of air to proceed into the machine may be considered a refusal to submit to a chemical test, so as to support revocation of driver's license. V.A.M.S. § 577.041. Tarlton v. Director of Revenue, State, 201 S.W.3d 564 (Mo. Ct. App. E.D. 2006)

Tampering charge: A person's blood alcohol content, as it exists inside their body and within their control, does not constitute "physical evidence," or a "thing presented to the senses" for purposes of statute making tampering with evidence a crime; potentially measurable amounts of blood still within the human body do not constitute evidence, and until one's breath or blood has been obtained or collected for analysis, it cannot be considered either "physical evidence" or a "thing presented to the senses.” Thus defendant who had three double shots of whiskey and half a beer following truck accident but before highway patrol officer asked defendant to take blood alcohol level (BAC) tests did not tamper with the evidence, as BAC level while still within defendant's body was not "physical evidence." Montana Code § 45-7-207. State v. Peplow, 2001 MT 253, 307 Mont. 172, 36 P.3d 922 (2001)

Allowing State to establish foundation for Intoxilizer result through annual certification form for Intoxilizer, which was hearsay, without calling records custodian for certification form, did not violate defendant's confrontation rights; annual certification form was not substantive evidence used to prove charged offense, and thus certification form was not offered or admitted under state crime laboratory hearsay exception, but merely offered as part of foundation required for admission of other substantive evidence. Fed R Evid Rules 104(a), 803(8); Mont.Admin.R. 23.4.214. State v. Delaney, 1999 MT 317, 297 Mont. 263, 991 P.2d 461 (1999)

In State v. Fuller, 24 NC App 38, 209 SE2d 805, the court granted new trial after a conviction for driving while under the influence of intoxicating liquors and resisting an officer, holding that the failure of the state to establish that the defendant was accorded his statutory right as to advice that he could have another blood alcohol test administered rendered the results of a breathalyzer test inadmissible in evidence, its admission over objection constituting prejudicial error.

Allegation that blood sample of defendant charged with driving under the influence of alcohol or a controlled substance (DUI) was improperly refrigerated before hospital conducted blood alcohol content (BAC) tests was insufficient to require state to provide additional evidence to prove reliability of BAC test, since allegation was a general and speculative allegation of testing error. 75 Pa.C.S.A. § 1547(c). Com. v. Demark, 2002 PA Super 170, 800 A.2d 947 (Pa. Super. Ct. 2002)

Chemical intoxication tests—Statutory presumptive intoxication levels

Forensic scientists in the employ of the state and national safety organizations have attempted to establish that, at a certain level of alcohol in the blood, any individual would be intoxicated. Interestingly, there is some difference in state legislation as to the exact percentage considered to establish that the individual was intoxicated, ranging from a low of 0.08 percent to no set limit. Probably 0.15 percent is the most generally accepted limit, but 0.10 percent is gaining support. In several areas, the state's experts now will testify that 0.10 percent of blood alcohol places the subject "under the influence," whereas the same experts previously testified that it took 0.15 percent.

All states presently set presumptive intoxication levels in terms of blood-alcohol concentration. Expert witnesses generally are not required to interpret the results of chemical intoxication tests enumerated in statutes creating presumption or other inference of intoxication from specified percentages of alcohol in the system. Despite a test result creating a presumption of intoxication, the jury may acquit if the defendant's guilt is not proven beyond a reasonable doubt. In most states, an agency of the state government has responsibility for determining the appropriate methods of handling chemical intoxication tests and for certifying testing operations.

Statutes generally establish presumptive levels of intoxication in terms of blood alcohol patterned after the Uniform Chemical Test for Intoxication Act § 7. Uniform Chemical Test for Intoxication Act § 7 provides that if chemical analysis indicates 0.05 percent or less alcohol by weight in a person's blood such fact is prima facie evidence that the person was not under the influence of intoxicating liquor, that if the concentration of alcohol was in excess of 0.05 percent but less than 0.15 percent by weight such fact was relevant but not to be given prima facie effect in establishing that the person was or was not under the influence of intoxicating liquor, and that if 0.15 percent or more alcohol by weight was disclosed by the test such fact was prima facie evidence that the person was under the influence of intoxicating liquor.

Chemical intoxication tests—Automatic or per se DWI statutes


Driving under the influence (DUI) statute that prohibited persons under age 21 from driving with a blood alcohol level of .02 or more, while prohibiting persons 21 and over from driving with a blood alcohol level of .08 or more, did not violate equal protection rights of younger group; statute was rationally related to the proper governmental purpose of prohibiting underage drinking and driving. U.S.C.A. Const.Amend. 14; Code 1975, §§ 28-1-5, 32-5A-191. Jolly v. State, 858 So. 2d 305 (Ala. Crim. App. 2002), cert. denied, (Mar. 28, 2003)

In order to support a charge of "traditional DUI", the State must prove that a defendant was driving or in physical control of a vehicle while under the influence of intoxicating liquor; in contrast, to support a charge of "per se DUI," the State need not prove that the defendant was under the influence while driving or controlling a vehicle, as it suffices to prove that, within two hours of driving or controlling a vehicle, the defendant had an alcohol concentration at or exceeding the statutorily determined rate. Arizona Revised Statutes § 28-1381A1, 2. Guthrie v. Jones, 202 Ariz. 273, 43 P.3d 601 (Ct. App. Div. 1 2002)

Because state chose to prosecute driver for violation of "per se" paragraph of drunk-driving statute, and not for violation of "under influence" paragraph, proof of properly administered chemical test showing blood-alcohol level higher than statutory standard of 0.10 percent was conclusive proof of violation, without need for proof that defendant's driving was impaired. State v. Edmondson (1994, Idaho App) 867 P2d 1006.

"Zero tolerance law," which makes it a crime for anyone under age of 21 to drive with blood alcohol content of 0.02 percent or higher is rationally related to a legitimate legislative purpose of reducing teenage traffic fatalities and protecting all members of the public and thus does not violate equal protection rights of those prosecuted under that law. U.S.C.A. Const.Amend. 14; Const. §§ 1 to 3; KRS 189A.010(1)(e). Com. v. Howard, 969 S.W.2d 700 (Ky. 1998).

Evidence supported conviction for violation of per-se drunk-driving statute forbidding driving with blood alcohol level of 0.08 percent or more, where breath test whose proper administration was disputed showed 0.09 percent, test had barely sufficient margin of error of 0.015 percent to support defendant's claim that blood-alcohol level could have been below 0.08 percent, and ample evidence of erratic driving supported inference that level was 0.08 percent or more. State v. Weeks (1993, Me) 634 A2d 1275.

Minors: Statute, by imposing strict liability upon driver under age of 21 who has alcohol concentration of 0.02 or more, regardless of whether his ability to drive is impaired, does not create conclusive burden-shifting presumption that violates Due Process Clause; statute does not create factual presumption with respect to when illegal alcohol concentration is present, and impairment is not element of crime. U.S.C.A. Const.Amend. 14; Montana Code § 61-8-410. State v. Luchau, 1999 MT 336, 297 Mont. 415, 992 P.2d 840 (1999)

Trial court in prosecution for driving under influence of alcohol erred in instructing jury as to statutory presumptions arising from various blood alcohol levels (less than 0.05 percent, presumed not intoxicated; 0.05–.10, blood alcohol level may be evidence of intoxication; more than 0.10, presumed under influence), without also instructing that presumed fact (driver under influence) allowed by third presumption must nevertheless be proved beyond reasonable doubt, and where jury returned general guilty verdict without distinguishing between traditional "under influence" charge based on presumptions and "per se" offense based on blood alcohol level alone. Long v. State (1993, Nev) 853 P2d 112.

Where the defendant's blood alcohol content was measured at.141 percent about 2 hours after his arrest, the blood alcohol content did not represent a substantial departure from the permissible limit and could have been below.10 percent when he was stopped and risen above the limit during the substantial delay prior to testing and, therefore, the inference of guilt was too weak to support the defendant's conviction for driving under the influence of alcohol with a blood alcohol content of.10 percent or greater in the absence of evidence relating his blood alcohol content test results back to the time of driving. Commonwealth v. Loeper (1995, Pa) 663 A2d 669.

Driving under the influence of alcohol statute (DUI) merely created a permissive evidentiary inference, rather than a mandatory presumption, that a driver had a blood alcohol content of.10 percent or more at the time of driving if a test, conducted within three hours after driving, indicated a blood alcohol content of.10 percent or more, and thus, statute did not create the unconstitutional prospect of conviction for innocent conduct, in that it did not preclude a defendant from admitting evidence that his blood alcohol content was below the legal limit at the time of driving. 75 Pa.C.S.A. § 3731(a)(1). Com. v. Murray, 2000 PA Super 84, 749 A.2d 513 (Pa. Super. Ct. 2000)

Witness's testimony at trial for intoxication manslaughter that results of lab tests on defendant's blood showed a blood alcohol content of 0.18 was based on scientific testing that was sufficiently reliable to prove matter asserted, namely that defendant's blood alcohol content exceeded "per se" level of 0.10, even though defendant challenged precision of lab's measurements of his blood alcohol level; lab tests were accurate to within plus or minus 10%, and potential error in reporting defendant's blood alcohol content at 0.18 did not create a risk that his actual blood alcohol content was lower than "per se" level. V.T.C.A., Penal Code § 49.08; Rules of Evid., Rule 702. Morris v. State, 214 S.W.3d 159 (Tex. App. Beaumont 2007), petition for discretionary review granted, (Sept. 12, 2007)

Chemical intoxication tests—Implied consent laws; effect of refusal to submit to test

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.

Implied consent law applied broadly and generally to those who drive, and did not require proof of actual driving immediately prior to lawful arrest for driving while under the influence; thus, under statute providing for suspension or revocation of driver's license based on refusal to submit to chemical testing under implied consent law, proof that arrestee was driving immediately prior to the arrest was not required; abrogating Weber v. Orr,274 Cal.App.2d 288, 79 Cal.Rptr. 297; Medina v. Department of Motor Vehicles,188 Cal.App.3d 744, 233 Cal.Rptr. 557; Jackson v. Pierce,224 Cal.App.3d 964, 274 Cal.Rptr. 212. West's Ann.Cal.Vehicle Code §§ 13353, 23612. Troppman v. Valverde, 40 Cal. 4th 1121, 57 Cal. Rptr. 3d 306, 156 P.3d 328 (2007)

Police dispatcher who observed driver's refusal to consent to breath alcohol test over a closed circuit television did not "witness" the refusal, as required to endorse police officer's report of the refusal under the implied consent statute; when a person is observing via closed circuit television, she is completely reliant on the image, and perhaps sound, supplied by the camera in the other room, and as a consequence, there is no guarantee that she will be able to see and hear fully what is happening. C.G.S.A. § 14-227b(c). Winsor v. Commissioner of Motor Vehicles, 101 Conn. App. 674, 922 A.2d 330 (2007)

Defendant's proclaimed fear of needles was not sufficient cause for his refusal to submit to blood alcohol concentration (BAC) test, following his arrest for driving under influence of alcohol (DUI); defendant indicated to officers that he simply "preferred" to have a breath test rather than a blood withdrawal, while defendant expressed general fear of needles, and generally referenced risk of contracting Acquired Immune Deficiency Syndrome (AIDS), defendant admitted that he had received shots, he denied ever having seen a psychologist for his fear, and he never identified any mental or medical conditions that would be adversely affected by administration of blood withdrawal. Halen v. State, 136 Idaho 829, 41 P.3d 257 (2002)

Testing after "accident": Intoxicated motorist who had been driving vehicle in an out of control manner and who eventually came to a stop in vehicle with a tire missing and damage to vehicle rim, was in an "accident" for purposes of automobile exception to physician-patient privilege contained in implied consent statute, and thus results of blood test taken from motorist were admissible in prosecution for driving under the influence of intoxicating liquor. M.C.L.A. § 257.625a(6)(e). People v. Green, 260 Mich. App. 392, 677 N.W.2d 363 (2004), appeal denied, 471 Mich. 873, 685 N.W.2d 669 (2004)

"Confusion doctrine," under which drunk-driving arrestee might assert confusion arising from proximate advice by arresting or booking officers as to both Miranda right to counsel and implied-consent law that does not allow counsel for decision whether to submit to chemical testing of blood alcohol level, would apply, if at all, only where Miranda warning precede implied-consent warnings. Blomeyer v. State (1994) 264 Mont 414, 871 P2d 1338.

Defendant's due process rights were violated, even though he consented to withdrawal of blood, when he was shackled to hospital bed and held down by six persons while another person withdrew his blood at direction of police officers while defendant was resisting. U.S.C.A. Const.Amend. 14; Const. Art. 1, § 10. State v. Sisler, 114 Ohio App. 3d 337, 683 N.E.2d 106 (2d Dist.Clark County 1995).

Motorist's fear of invasive medical procedures, including injections and tests using needles, and concern about risk of contracting HIV (human immunodeficiency virus) did not justify refusal to submit to blood alcohol test. Jacobs v. Com., Dept. of Transp., Bureau of Driver Licensing, 695 A.2d 956 (Pa. Commw. Ct. 1997), appeal denied (Pa. Aug. 13, 1997).

Motorist's refusal to sign waiver of hospital-liability form, because he had lost his eyeglasses and was unable to read it, did not constitute refusal to take blood test for purposes of license suspension under implied-consent law, where motorist testified that he did not refuse to take blood test but refused to release hospital from liability by signing form, and waiver of hospital liability was not same as hospital consent form, which did not constitute impermissible precondition to chemical testing so as to excuse motorist's refusal to submit to blood test. Stump v. Department of Transp., Bureau of Driver Licensing (1995, Pa Cmwlth) 664 A2d 1102.

Motorist's fear that needle to be used to obtain blood sample was not sterile was not valid justification vitiating his refusal to submit to blood-alcohol test. Stenhach v. Department of Transp., Bureau of Driver Licensing (1994, Pa Cmwlth) 651 A2d 218.

Defendant failed to establish that she was physically unable to provide an alcohol breath test sample, and thus the Commonwealth was under no duty to prove that it offered defendant a blood test, during prosecution for driving under the influence (DUI); defendant provided no medical records or witness testimony to substantiate her claim that she had a chronic lung condition, she had successfully completed breath tests on two prior occasions when she was convictions of two prior DUI's, and police officer testified that defendant provided an adequate breath sample when he stopped her vehicle, that she failed to provide an adequate breath sample after he brought her to the police station, and that he believed that she "was not trying to give him a proper breath." West's V.C.A. § 18.2-268.2, subds. A, B. Sawyer v. Com., 43 Va. App. 42, 596 S.E.2d 81 (2004)