"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.
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.


Cases:


An eyewitness bystanders' statement identifying driver as operator of vehicle at time of accident, odor of alcohol on driver's breath, slurred speech, and results of field sobriety tests provided probable cause to arrest driver for driving under influence of intoxicating liquor. U.S.C.A. Const.Amend. 4. Paquette v. Hadley, 45 Conn. App. 577, 697 A.2d 691 (1997).

Conviction for driving under the influence of alcohol to extent it was less safe to drive was supported by evidence that motorist abruptly turned left from right-turn-only lane in front of another vehicle and nearly caused accident, that officer activated his emergency lights and siren, that motorist continued driving but eventually stopped car, that officer noticed odor of alcohol on motorist's breath and that he had bloodshot and glossy eyes, that motorist admitted to having consumed one or two beers, and that motorist failed field sobriety tests, even though motorist's conviction for making improper turn ultimately was reversed. O.C.G.A. § 40-6-391(a)(1). Burke v. State, 233 Ga. App. 778, 505 S.E.2d 528 (1998).

State trooper's observations gave him probable cause to arrest motorist for driving while intoxicated, as required to support suspension of motorist's license; trooper observed motorist's vehicle swerve from center line on two occasions and noticed strong odor of alcohol when he pulled motorist over, motorist admitted to drinking four or five beers, and motorist failed series of roadside sobriety tests, including reciting alphabet, walk-and-turn test, one-leg stand test, and gaze nystagmus test. V.A.M.S. § 302.505. Poage v. Director of Revenue, State of Mo., 948 S.W.2d 194 (Mo. Ct. App. E.D. 1997).

Information alleging that driver lost control of vehicle, which left road and struck tree, that investigating officer smelled alcoholic beverage in vehicle and on driver's breath, and that driver had admitted having "had like 2 beers," was sufficient to allege offense of common law driving while intoxicated, even though toxicological report had shown blood alcohol content of only.07 of one per centum by weight; low blood alcohol content only created presumption of nonintoxication, which state could rebut. McKinney's Vehicle and Traffic Law §§ 1192(3), 1195(2)(c). People v. McConnell, 11 Misc. 3d 57, 812 N.Y.S.2d 742 (App. Term 2006); West's Key Number Digest, Automobiles 353(6).

Police officer who was outside of his jurisdictional city limits and had no warrant had sufficient personal observation that criminal offense was being committed in his presence giving him authority to arrest defendant for driving while intoxicated (DWI); dispatcher had relayed information from concerned citizen about suspected intoxicated driver, officer had been told what vehicle to be looking for, and after identifying suspect vehicle and corroborating information provided by concerned citizen, officer observed driver steer out of her lane of traffic several times, cross into oncoming traffic, and make wide right turn and leave roadway. V.T.C.A., Penal Code § 49.04; Vernon's Ann.Texas C.C.P. art. 14.03. Leonard v. State, 135 S.W.3d 98 (Tex. App. Texarkana 2004); West's Key Number Digest, Limitation of Actions 349(12).



It is important to keep in mind that certain observations may be the result of conditions that are not related to the ingestion of alcohol. At times, arresting officers or others may overlook the possibility that the defendant's apparent intoxication is the result of illness or injury. A diabetic can appear drunk without having had a drink and can die if not properly treated. Likewise a person suffering an automobile accident can appear drunk solely from the shock. The smell of alcohol found on the defendant's breath could be caused by a mouthwash. The defendant's eyes could be red for any number of reasons. The suspect's natural speech may tend to be slurred, or his natural walk may tend to be unsteady. One of the most condemning indications of extreme intoxication is that the defendant lost control of his bowel or bladder function; however, this might also happen if the defendant were very sick.

Conditions giving the appearance of intoxication or simulating certain characteristics of intoxication that may be confused by arresting officers or other witnesses as intoxication include:

Flushed face caused by:

Blushing
Diabetes
High blood pressure
Menopause
Poisoning
Sunstroke

Acetone odor (a fruity odor) of the breath caused by:

Amnesia
Blood poisoning
Brain concussion and other brain injuries
Delirium tremens
Diabetes
Epilepsy
Food poisoning
Intestinal obstruction
Migraine headache
Nervous disorder
Starvation
Stomach cancer
Stomach ulcer
Vomiting

Eye disorder caused by:

Brain hemorrhage
Drugs
Fractured skull
Fright
Hay fever
High blood pressure
Nausea
Pain

Speech disorder caused by:

Adenoid problem
Cleft palate
Dislocation of jaw
Hysteria
Infection
Migraine headache
Toothlessness

Poor coordination (ataxia) caused by:

Exposure to gases, drugs, or chemicals such as carbon monoxide, barbiturates, or industrial chemicals
Inner ear infection
Muscle spasm or injury
Nerve injury
Shock
Spinal cord injury or disease

Hallucinations (delirium) caused by:

Bites or stings
Blood loss
Diabetes
Drugs
Infection
Poisons or poisonous foods

Drowsiness caused by:

Anemia
Brain concussion
Diabetes
Drugs
Sickness

Unnatural heavy sleep (coma) caused by:

Blood clot
Brain concussion
Diabetes
Exposure to chemicals
Heat stroke or high temperatures
Hysterical trance
Shock


An indictment alleged that defendant drove while intoxicated by reason of introduction of alcohol into his body. At trial, defendant introduced evidence that he was taking an anti-depressant drug at time of offense, and that this drug contributed to his intoxication. Held, intoxication resulting from combination of alcohol and a drug that makes a person more susceptible to influence of alcohol is legally equivalent to intoxication by alcohol alone. Trial court did not err by so instructing jury, and by authorizing defendant's conviction if jury found he was intoxicated by reason of introduction of alcohol, either alone or in combination with the drug. Sutton v. State (1993, Tex App Amarillo) 858 SW2d 648, petition for discretionary review gr (Nov 17, 1993).

Traditionally, the police 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.

Cases:

Police had "reasonable grounds" to believe that a motorist was driving under the influence of alcohol when they arrested her at the police station for DUI after having arrested her at the scene for reckless conduct, where they saw her fall against the back of her vehicle when she first exited it; observed a runny nose, watery, glassy, bloodshot eyes, and a very strong odor of alcohol on her breath; learned that she had drunk three or four glasses of champagne; gave a field sobriety test which she failed; and spoke with and observed her for 20 minutes before giving a breath test. 625 ILCS 5/2-118.1(b)(2), 11-501 (1996 Bar Ed.). People v. Fortney, 297 Ill. App. 3d 79, 231 Ill. Dec. 720, 697 N.E.2d 1 (2d Dist. 1998).

Statute providing that standardized field sobriety tests (SFST) may serve as evidence, in a prosecution for operating a vehicle while under the influence of alcohol, if the officer administered the tests in substantial compliance with generally accepted testing standards, violated constitutional provision granting the Supreme Court exclusive rulemaking authority on procedural matters; the legislative enactment was in conflict with Supreme Court's Homan decision implicitly interpreting rule of evidence requiring expert testimony to be reliable as requiring strict compliance with generally accepted testing standards for field sobriety tests. Const. Art. 4, § 5(B); R.C. § 4511.19 (2001); Rules of Evid., Rule 702. State v. Weiland, 127 Ohio Misc. 2d 138, 2004-Ohio-2240, 808 N.E.2d 930 (Mun. Ct. 2004); West's Key Number Digest, Limitation of Actions 55.

Horizontal Gaze Nystagmus (HGN) and finger-to-nose field sobriety tests produced evidence of purely physical nature, and defendant's performance of those tests did not compel her to testify against herself. Const. Art. 1, § 12. State v. Riddle, 149 Or. App. 141, 941 P.2d 1079 (1997).

Evidence was sufficient to support conviction for driving while intoxicated; although State did not adduce what, how much or when defendant consumed alcohol, defendant crashed his motorcycle trying to negotiate simple turn under safe driving conditions, when police officer arrived, defendant smelled of alcohol, performed simple tasks with difficulty, slurred his speech, swayed while standing, walked unsteadily, showed all six signs in horizontal gaze nystagmus test, could not perform walk-and-turn test, refused to perform one-legged stand test, admitted he had been drinking, and although defendant sustained abrasions and contusions, he did not appear to be in pain. V.T.C.A., Penal Code § 49.04. Letner v. State, 138 S.W.3d 539 (Tex. App. Beaumont 2004); West's Key Number Digest, Limitation of Actions 355(6).

Failure of suspect to perform well on either walk-and-turn sobriety test and one-leg stand sobriety tests is only evidence of impairment, and thus, a trial court commits error when it allows an expert on administering the tests, over objection, to correlate a suspect's performance on either of such tests to a blood alcohol content. Smith v. State, 65 S.W.3d 332 (Tex. App. Waco 2001), reh'g overruled, (Dec. 28, 2001); West's Key Number Digest, Criminal Law 474.2.

Trooper's visual observations of driver's car, coupled with fellow trooper's information that radar showed driver's car approaching at a speed in excess of the speed limit, were sufficient to warrant a person of reasonable caution to believe that driver was speeding, such that trooper had probable cause to make initial stop of driver's vehicle and driver's license could be revoked under implied consent statute for refusing breath test; Department of Licensing was not required to produce foundational evidence to support the radar reading. West's RCWA 46.20.308. Clement v. State Dept. of Licensing, 109 Wash. App. 371, 35 P.3d 1171 (Div. 1 2001), review denied, 146 Wash. 2d 1017, 51 P.3d 87 (2002); West's Key Number Digest, Automobiles 349(2.1).

Testimony of 16-year police veteran regarding his training and experience in administering and assessing field sobriety tests provided sufficient foundation to admit officer's testimony regarding such tests in administrative proceeding to revoke driver's license; officer testified he had received training in conducting, and had instructed others to conduct, horizontal gaze nystagmus (HGN) test, that he did not use HGN test in isolation to determine probable cause and did not attempt to use it to extrapolate driver's blood alcohol concentration, and that he had significant training in standardized field sobriety testing based on studies conducted by National Highway Traffic Safety Administration. Smith v. State ex rel. Wyoming Dept. of Transp., 11 P.3d 931 (Wyo. 2000); West's Key Number Digest, Automobiles 422.1.