Cases

"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.
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"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:
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"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...

"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...