March 2013

Local DUI Attorney Explains: What Do I Do If Pulled Over By Police? Local DUI Attorney Explains: What Do I Do If Pulled Over By Police?

Local DUI Attorney Explains: What Do I Do If Pulled Over By Police?

The following article appeared in the Newport Patch on March 8, 2013 (here is a link to the original post):

As lawmakers discuss strengthening DUI laws in Rhode Island, the consequences for being found guilty of drunk driving could become even more severe.

Local DUI Attorney Kevin Hagan said that while it is vital that law enforcement protect the residents they serve and enforce the law, it is equally important that residents understand their rights when they are pulled over.

“I’m not beating the drum that police shouldn’t be doing their job," Hagan said. “If people know their rights, it helps law enforcement do a better job.”

“The bottom line is very simple; people shouldn’t drink and drive."

But police have a job to do, and a criminal defense lawyer has a job and obligation to uphold the Constitution, he said.

What should you do if police pull you over?

Hagan said overall, an officer is looking for evidence that you are intoxicated. Therefore, anything you say or even how you say it (slurred words, confusion) could be used as evidence. Although you must provide identifying information and documentation, you are under no obligation to say anything else, he said.

His recommendation? Ask to speak to a lawyer and don’t answer any questions.

But, it won’t be comfortable, warns Hagan.

“It’s rude not to speak to the police officer. The police officer wants information. There is no way to do this diplomatically.”

Consider the scenario when an officer asks if you have been drinking. If you answer yes, it is damaging evidence. If you answer no, and it is later proved wrong, you have lied.

Hagan said it's generally better to invoke the fifth, because it is difficult for the court to hold that against you.

Do I have to take the field sobriety tests?

No. Hagan said he is surprised with how many people do not realize you have the right to refuse the field sobriety tests. He said in most cases, that is the best option.

“In my experience, even people who are sober can fail it,” he said. “It’s a no-win situation. Why would you submit to a test that you are likely to fail?”

Unlike refusal to take the chemical test, there is no criminal or civil penalty for refusing to take the field sobriety tests.

Should I take the chemical test (breathalyzer)?

“The general consensus from a criminal defense lawyer is that more often than not, refuse the chemical test,” Hagan said. “Refusing makes the criminal case more difficult to prove within a reasonable doubt.”

First offense refusal of a chemical test is a civil offense; it is not criminal. However, unlike refusal to take the field sobriety tests, it is not without consequences. A license can be revoked for six months and the driver may incur a $950 fine, plus several other fees, although nothing is determined until brought before a judge.

“Sometimes if you admit to the criminal, they will drop the civil. Or vice versa,” Hagan said.

DUI Myths

There is a myth that if the key is out of the ignition, you can't get a DUI. Untrue. In Rhode Island, operation of a vehicle can be inferred, which means you can still get a DUI even if you are out of the car. Police can feel if the hood of the car is warm or use witness testimony that you were driving.

There is a rumor that sucking a penny will alter the breathalyzer results. False, says Hagan.

There are many factors that determine a person’s BAC, so even if you followed the one drink per hour rule, you could be found over the legal limit on a chemical test.

What could help your case in court?

- If you were not provided the opportunity for an independent chemical test.
- If you were not read your rights.
- If you were not provided the opportunity to make a confidential phone call.
- If you took the field sobriety tests, it could be argued they were not standardized or you do not fit the standard profile (medical conditions, weight, etc).
- Should I hire a lawyer?

A lawyer can help negotiate a possible dismissal, get the charge amended to a lower offense or exercise a right to a trial. Lawyers are also typically more effective at cross-examining witness.

"A lawyer is better suited for a DUI case because of the technical nature of the case," he said.

Kevin Hagan's contact information can be found on his website.

[editor's note: the article was modified on Mar. 8 to clarify a DUI myth.]

This article contains general information and is not intended to give legal advice. If you have specific questions, you are encouraged to contact an attorney.

RI DUI Loophole for Drivers Under 21

Lawmakers Work to Close DUI Loophole for Drivers Under 21

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:

Ignition Interlock

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.