What to Know about DUI Field Sobriety Tests in RI

Field sobriety tests are used by law enforcement officials, including highway patrolling state troopers and local municipal police departments, to establish if a driving motorist is under the influence of drugs or alcohol. Most typically, a field sobriety check is given during a traffic stop. If you or a loved one have been subjected to a field sobriety test and are fighting a driving under the influence charge, call an experienced
Rhode Island DUI attorney who can file help you fight your Rhode Island DUI charge.

Rhode Island’s Ignition Interlock DUI Laws – RI Hardship License or Work License

Although the law is more than two years old, many of Rhode Island’s citizens are not aware of the ignition interlock law of 2015. The Rhode Island legislature looked to the Rhode Island State Police, whom have trained with other state police departments where interlock laws already exist. States that have used this system have seen an average of a two-thirds reduction in repeat offenses. It is expected that these ignition interlocking systems will allow for the reduction of fatal DUI accidents, which, in turn, will also reduce the amount of Rhode Island DUI lawsuits.  Drunk Driving advocacy groups also seemed to support the policy behind the passage of this new law.  In addition, this law enables a convicted motorist, or a motorist who has a pending case with a preliminary suspension, to operate a vehicle for a particular purpose, with the device installed in the vehicle. Read More...

Can I Be Charged With an Underage DUI In Rhode Island?

Although the legal drinking age in Rhode Island is twenty-one years old, it is of no surprise that those who are younger also partake in the consumption of alcohol. With the legal driving age in Rhode Island being sixteen years old, the unfortunate mixture of alcohol and driving by a minor happens far too often. But what happens when an underage motorist is pulled over with alcohol in their possession or the motorist is under the influence of alcohol? An experienced Rhode Island DUI lawyer can help those who have been charged with a DUI. Read More...

What To Know About Field Sobriety Tests In Rhode Island

Field sobriety tests are used by law enforcement officials, including highway patrolling state troopers and local municipality police departments, to establish if a driving motorist is under the influence of drugs or alcohol. Most typically, a field sobriety check is given during a traffic stop, although most departments have the option of additional tests at the police department. If you or a loved one have been subjected to a field sobriety test and are fighting a driving under the influence charge, call an experienced
Rhode Island DUI attorney who can file help you fight your Rhode Island DUI charge.


What do I do if pulled over by police?

Read here about how RI DUI attorney Kevin Hagan explained to the Newport Buzz what to do if you are pulled over by the police.

"DUI Checkpoints are illegal in Rhode Island; however…"

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.

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

"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.

"RI DUI - Selecting and preparing expert witnesses"

In order to be prepared adequately to cross-examine the prosecution experts, defense counsel should prepare for trial as in the defense of any other serious offense, limited only by the practical, economic limitations placed on him by his client. The selection of defense experts can be very critical because a well qualified expert who can make a favorable impression on the jury can make the difference between acquittal and conviction.

Defense counsel generally should match expert for expert with the prosecution by locating and preparing defense experts including breath test operators and supervisors, physicians, forensic chemists, toxicologists, and, when relevant, accident reconstruction engineers. Physicians, nurses, medical technicians, chemists and accident reconstruction engineers are relatively easy to find. A qualified expert on breath tests who is not already employed by or retained by the state, on the other hand, is much more difficult to find.

In a prosecution for gross vehicular manslaughter while intoxicated, driving while under the influence of alcohol or drugs and causing injury, driving with a blood-alcohol level of 0.10 percent or greater and causing injury, and being under the influence of a controlled substance (cocaine), the trial court did not err in permitting the People's expert, the chief forensic toxicologist at a county crime laboratory, to testify regarding the combined effects of alcohol and cocaine. Given the paucity of studies on the subject, it was quite proper to allow the expert to draw an inference based on her extensive knowledge of physiology, pharmacology, depressants and stimulants and, specifically, alcohol and cocaine. Work in a particular field is not an absolute prerequisite to qualification as an expert in that field. With the understanding that the expert had neither been trained in nor conducted studies on the combined effects, and that her opinion was based upon inference, the jury could properly weigh her testimony that cocaine would not counteract the noxious effects of alcohol against defendant's contrary testimony. People v. Coyle (1994, 6th Dist) 22 Cal App 4th 1679, 28 Cal Rptr 2d 488, 94 CDOS 1628, 94 Daily Journal DAR 2821, review gr (Cal) 31 Cal Rptr 2d 125, 874 P2d 900, 94 CDOS 4054, 94 Daily Journal DAR 7523 and reprinted for tracking pending review (6th Dist) 28 Cal App 4th 66.

Opinion on field sobriety test false positives: Erroneous statistical data elicited by defendant from expert on field sobriety tests regarding alleged percentage of sober persons who fail field sobriety tests opened door for State on cross-examination to point out error that manual from which statistical evidence was drawn did not use terms "sober" or "intoxicated" but instead provided statistics for persons with blood alcohol content of .10 or more who failed tests. Schmidt v. State, 816 N.E.2d 925 (Ind. Ct. App. 2004), transfer denied, 831 N.E.2d 743 (Ind. 2005).

In prosecution for DUI, third offense, trial court abused its discretion in denying defendant's motion for appointment and payment of expert witness to challenge reliability of Breathalyzer tests where issue of reasonableness of time between arrest and administering of test was particularly important in case, and thus defendant could not have safely proceeded to trial without appointment of expert to testify about reliability of tests following delay between time of arrest and administering of tests. People v. Jacobsen (1994) 205 Mich App 302, 517 NW2d 323.

Selecting and preparing expert witnesses—Breath-test expert

Since the defense attorney cannot expect the state's chemist to bring out or embrace the literature that is unfavorable to breath tests, locating an expert breath-test witness for the defense can make the difference between "guilty" and "not guilty" verdicts in many cases. Ideally, such an expert holds advanced degrees in chemistry, has attended schools on the operation of breath-testing devices, is familiar with the literature on the subject, and personally participated in experiments. The best places to search for such an expert are in college chemistry departments, professional societies, and independent testing laboratories. However, in many areas it is impossible to find a breath test expert to testify for the defense because there are none. About the only way to cope with such a situation is to locate a qualified chemist and persuade him to study information on the breath-test device. If qualified by intense recent study of the literature and experience with the particular testing device, any chemist would be qualified concerning the accuracy of the test, and could give an opinion regarding the defendant's intoxication based on the blood-alcohol content shown by the police-administered test.

Although experts in DUI case can be expensive and labor intensive, they are generally worth the effort if feasible. Experts are seldom utilized unless serious bodily injury or death are present; however if possible, experts should be used more frequently.

"Field Sobriety Tests in Rhode Island - Proof of Intoxication"

Traditionally, the Rhode Island police departments have requested persons suspected of intoxication to perform certain physical tests, and inability to adequately perform was considered to corroborate their conclusion of intoxication based on objective signs. Perhaps the oldest and best known test for intoxication was the request to walk a straight line. However, while an intoxicated person will encounter difficulty in walking a straight line, there are also many sober people who cannot walk a straight line and, since the police usually do not know how the individual walks when completely sober, this test does not readily establish intoxication.

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.

"RI License Suspension"

In a Rhode Island DWI or DUI charge, conviction of driving while intoxicated ordinarily results in a revocation or suspension of the driver's license and all motor vehicle registrations held by the defendant. This provision of the typical driving-while-intoxicated statute is probably the chief factor motivating defendants to plead not guilty. However, conviction for driving while intoxicated is not essential to the institution of proceedings revoking or suspending a driver's license; the same facts presented in the criminal trial resulting in acquittal of the charge of driving while intoxicated may be sufficient to support an administrative revocation or suspension of that person's driver's license. In some jurisdictions, a driver's license may be suspended or revoked when the licensing authority (DMV) has notice of the licensee's conviction outside the state for driving while intoxicated.

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.

"Operation Elements of DUI Cases"

Rhode Island DUI, Rhode Island DWI, and RI Driving Under the Influence cases require that the prosecution prove that the suspect was actually operating the vehicle while under the influence of alcohol. Rhode Island Criminal Defense Lawyers are accustomed to reviewing police reports and interviewing witnesses in an effort to determine if the “operation” element of a DUI case can be proven by the prosecutor.

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...

"Breathalyzer Elements for Admissibility"

A Rhode Island DUI Case will often times include evidence of breathalyzer or breath test results. Defense counsel should inform himself of the foundation that the prosecution must lay in order to qualify the particular intoxication test. In the absence of an adequate foundation, defense counsel should object to admission of results of the test. Although all states do not require proof of the same matters, items from the following list could reasonably be required by any court as a predicate, and defense counsel should be prepared to object to admission of the test results if any applicable items are not established by the prosecution:

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.

"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 a Rhode Island DUI, DWI, or Driving Under the Influence criminal defense, the attorney of record should have an in depth knowledge of the constitutional requisites for the admissibility of evidence. All possible violations of the defendant's constitutional rights should be investigated. These would include (1) whether the police had probable cause to stop the defendant, (2) whether a legal arrest was made, (3) whether constitutional and statutory warnings were given, (4) whether probable cause to request a breath-alcohol or other scientific test existed, (5) whether a legal search and seizure occurred (6) whether the defendant's right to counsel was violated, and (7) whether a confession was legally obtained. In a Rhode Island Drunk Driving, DUI arrest or DWI prosecution, a criminal defense attorney should also be keenly aware that “operation” is an important element for the prosecution to prove. In other words, the prosecutor in Rhode Island must prove beyond a reasonable doubt that the DWI, DUI suspect actually was operating the vehicle while under the influence. Some of these issues follow: Read More...

"A first offense of driving while intoxicated can carry more than the six months' jail penalty"

With respect to a Rhode Island DWI, Rhode Island DUI or Rhode Island Drunk Driving or Driving under the Influence case, a first offense of driving while intoxicated can carry more than the six months' jail penalty measure set by the United States Supreme Court in the Miranda case as the point from which it may be determined that "substantial" rights of a suspect are involved which would require the giving of constitutional warnings prior to interrogation. Consequently, the police ordinarily do give constitutional and statutory warnings regarding the rights of a suspect when they make an arrest for driving while intoxicated.

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.

"In Rhode Island, Drunk Driving, DUI, DWI, Sobriety Checkpoints are unconstitutional."

In Rhode Island, Drunk Driving, DUI, DWI, Sobriety Checkpoints are unconstitutional; however in other states across the country, and pursuant to Federal Law, these drunk driving reduction tools are constitutionally permissible. It will not be long before our Rhode Island Supreme Court revisits this issue in a manner more analogous with the majority of U.S. jurisdictions. The following examples illuminate the issues surrounding Rhode Island DUI, DWI, and Drunk Driving checkpoints. 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."

With respect to a Rhode Island DUI, DWI, driving under the influence, or drunk driving prosecution, a majority of arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect's conduct by the arresting officer. This raises the constitutional issue, in nearly every case, of whether probable cause existed for the arrest. If probable cause to arrest did not exist when the police initially stopped the suspect, an illegal arrest was made and all evidence gained after the arrest would be inadmissible. While probable cause to arrest is rather apparent when a suspect was driving recklessly and a strong smell of alcohol on his breath was evident to the officer or the suspect got out of the automobile with a bottle of liquor in his hand, probable cause is not so apparent where an individual is stopped for a routine driver's license check or similar reason, and the officers smell alcoholic odors but do not detect further evidence of drunkenness. State courts divide on the question of probable cause to make an arrest under the latter fact situation. A Rhode Island criminal defense lawyer will generally analyze probable cause before they review other issues in the DUI or DWI case.

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:

"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."

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.  Some of the following cases provide examples of this pursuit. 

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…"

The following case reflects how recent interpretations of the Confrontation Clause and well settled hearsay rules will impact the 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.
PETTY, Judge.

  *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 Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections under the law. Most police agencies now take the position that the court-recognized status of a driver's license as a privilege, coupled with the statutory authorization for chemical intoxication tests in driving-while-intoxicated cases, amounts to a waiver of a suspect's constitutional rights against self-incrimination and the right to counsel prior to questioning and the giving of the test, unless otherwise provided by state law. Consequently, the normal order of police routine involves (1) a demand on the suspect to take the test, (2) extensive questioning, (3) performing the test, and finally, (4) an offer of an opportunity to the suspect to consult counsel.

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."

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...

"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...

"In Rhode Island, the prosecution can prove the elements of a DWI or DUI charge without the admissibility of a chemical test"

In Rhode Island, the prosecution can prove the elements of a DWI or DUI charge without the admissibility of a chemical test. These cases are referred to as “observation” cases. As one can imagine, it is more difficult for the prosecution to prove the elements of a DUI without an empirical analysis of the suspect’s blood alcohol content; however, it can be done in a variety of different factual scenarios. Objective signs of intoxication, those ordinarily testified to as having been observed by the arresting officer or other prosecution witness, include the odor of alcohol on the breath, slurring of speech, inflamed and watery eyes, a ruddy complexion, an unsteady gait, and poor coordination. Usually, one or more of these observed signs comprise the basis for the officer's probable cause in making the arrest. However, as is discussed in the section that follows, a variety of conditions affecting an individual's health can present the same or similar symptoms. Read More...