Rhode Island

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...

Understanding Pleas and Expungement in the Rhode Island Court System

What is the difference between a Guilty and a Nolo Contendere plea? What are the consequences of different pleas in Rhode Island? What types of cases can be expunged? This article by RI Attorney Kevin Hagan discusses the different types of pleas and how each type of disposition can affect one’s eligibility for expungement.

Rhode Island DUI Law

Driving under the influence of alcohol or drugs (DWI or DUI) is a serious criminal offense in the State of Rhode Island. In Rhode Island, there are two types of DWI/DUI cases; observation and Chemical Test cases. Read this important article by RI DUI Attorney Kevin Hagan to learn about the elements of proving a DUI case and the penalties vary based on the Blood Alcohol Content (BAC).

Speeding Violations in Rhode Island

This article by RI Speeding Attorney Kevin Hagan discusses some of the key cases and legal defenses to speeding violations in Rhode Island.

Operating on a Suspended License in Rhode Island

What are the penalties for operating on a suspended license in Rhode Island? Are there any defenses to driving with a suspended license? How do you get your suspended license reinstated? This article by RI Attorney Kevin Hagan explains the laws governing operating on a suspended license in RI.

Understanding Domestic Violence Laws in Rhode Island

This Article by RI Attorney Kevin Hagan explains the laws, procedures, and penalties for the crime of Domestic Violence in Rhode Island.

Rhode Island Drivers: A New Hope

A new law enacted on June 18, 2013 now creates an avenue for Traffic Court records to be erased and the memories of tough times can be brought to a close. The Act, introduced by Senators McCaffrey and Lynch, has amended the Rhode Island law in a way that many find helpful.

The language of the statute is as follows:

“31-41.1-10. Expungement. -- All violations within this title which are in the jurisdictionof the traffic tribunal or of a municipal court shall by operation of law, after three (3) years,following adjudication of the violation and after expiration of any mandatory state or federalrecord-retention period, be expunged from the records of the traffic tribunal or theMunicipal court and from the records of the division of motor vehicles, except for those offensesrelated to alcohol as provided in section 31-27-2.1, which shall be expunged after five (5) years.These expungements shall be in addition to and not in place of any expungementprovided for by chapter 1.3 of title 12”.

This new Act will allow for the record of a traffic offense to be purged from the files of the agencies entrusted with their keeping. This will allow citizens to move on after what can be an incredibly expensive, stressful and inconvenient time in their lives. The (3) year waiting period will expedite and memorialize the process for which a file can be permanently erased, without waiting for a motion to be filed or action to be taken. This new Act helps create a system of renewal in which drivers will not be plagued by that traffic offense that “happened a few years back.” In this new system, many drivers will realize a benefit later in their lives, after years of safe driving.

As a cautionary instruction, motorists should ensure that their driving abstract has been properly purged by ordering a copy on line at:
www.ri.gov/dmv/mvr/citizen/. In the event that your record has not been erased, a motion for corrective action should be filed at the Rhode Island Traffic Tribunal. Happy and safe driving to all.

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Rhode Island Golf for Lawyers

Rhode Islandf Golfing Attorney

Some practice yoga, some relax by the water, and some enjoy the scenery and views from one of the many fantastic bars and restaurants here in Newport, Rhode Island. When I find a little free time (it is rare that I do) I prefer to spend my time at one of the many gorgeous golf courses that our ocean state has to offer. An early morning or mid afternoon round can be just what the Doctor ordered to relieve stress after the never ending story that is the private practice of law. The early morning dew on the greens and a nice brisk breeze provides all the clarity one needs to help let go of the work week. Additionally, golfing helps reduce stress and provides hours of low intensity exertion that releases endorphins into the body and stimulates blood flow. So for this Kevin Hagan Law blog entry I decided to try something different and provide some information about the courses that I enjoy in Rhode Island, and some of the benefits of the game that has been “de-stressing” folks since the 15th century.

So first, why golf?

1) Elevates mood, self confidence, and reduces risks of depression

2) Golf also reduces stress and cholesterol, two things that everyone needs to reduce. A single game of golf can burn up to a thousand calories, which is a great way to stay in shape and burn off excess fat. A game of golf gets the blood flowing and increases your heart rate, making golf a wonderful cardio-vascular exercise. Playing golf once a week means that you’re walking between four and eight miles regularly once a week, which is great for the heart and lungs. Any activity that leaves you slightly short of breath and works up a bit of a sweat is great for your cardiovascular system, or heart. In addition to lowering harmful cholesterol, it also helps speed up your metabolism, making weight loss easier. A round of golf burns about 300 calories in a 150 pound individual who plays for 1 hour while carrying clubs. If you choose to ride in a cart, the same round of golf will burn only 230 calories. The driving range burns about 200 calories per hour.

3) Playing golf improves heart and lungs efficiency and increases circulation.

4) It helps you sleep better: Study after study has shown that regular exercise increases the positives that sleep brings. You’ll fall asleep faster and remain in a deep sleep for a longer period of time with regular exercise, which includes activities like golf. Sleep is important because it allows time for your muscles to repair themselves. Playing a round of golf by day will likely increase the quality of your restfulness by night.

5) Strengthens bones and maximizes bone density

6) Reduces stiffness in muscles and joints

7) Improves flexibility and posture

8) Improves mental capacity and concentration

9) In addition to the many health benefits of golf, the course itself may actually be the place where some work itself is done. So we need to ask....Why do so many people like to do business on the golf course? It seems that especially for men, when they are in the act of accomplishment, they feel good about themselves and want to do business. This could relate to some sort of tribal, hunting instinct. I also think golf is a great way to discover a person’s true character. You can tell a lot about someone by the way they react to little mistakes they make, how they react when they get frustrated or angry, and how they think based on their self-talk. You can also discern someone’s honesty - if they will cheat or lie about their golf score, you can bet that dishonesty is possibly in their nature.

And now to the important stuff, a quick list of my favorite courses to unwind, de-stress and maintain the competitive edge that drives (pun intended) a sole practitioners law practice.

1) Kirkbrae Country Club: Kirkbrae Country Club is a private, member owned country club located in Lincoln, Rhode Island. Kirkbrae is considered one of New England’s finest country clubs. In 2000, Kirkbrae completed a 47,000 square foot, multi-million dollar construction of its clubhouse, creating some of the most panoramic and breathtaking views of the Northern Rhode Island landscape. Established in 1962, Kirkbrae features an 18-hole Championship golf course, an Olympic size swimming pool, a fully equipped health facility, a 500-seat banquet facility and a 255 seat member dining area. The Club is open year round and operates seven days per week.

In 2000, the membership of Kirkbrae constructed a brand new 47,000 square foot clubhouse, making Kirkbrae one of the largest private clubs in Rhode Island. The membership is very proud of the facility and the amenities, especially the quality of service and food & beverage operations.

Today, some forty years after it first opened, Kirkbrae has emerged as one of the finest country clubs in New England, and has become a premier choice for weddings, banquets, and corporate events. Serving all of southeastern New England, Kirkbrae Country Club offers the perfect atmosphere with fabulous and unparalleled service.

2) Newport National: The Orchard Course, which opened in June 2002 to rave national and regional reviews. Designed by legendary golf architect Arthur Hills and his associate Drew Rogers, the course is located in Middletown, Rhode Island on almost 200 acres of former shrub and tree nurseries and offers sweeping views of The Sakonnet Passage, Atlantic Ocean and Narragansett Bay. The Orchard Course, which measures 7,244 yards from the championship tees, has been nominated for “Best New Private Course” in Golf Digest’s Annual (2003) Survey of America’s Best New Courses. In 2004, it was named the #1 course in Rhode Island with public access by GolfWeek. The Orchard Course features greens, tees and fairways consisting of 100% seaside bent grass, and grand, swaying fescue often exceeding 4’ in length. The fairways and greens were designed to play fast and firm; the greens are undulating and well-bunkered, and pitch-and-run shots will often be required to save par after a missed green. Reminiscent of some of Irelands finest golf links, The Orchard Course will play a little differently everyday depending on the famous Aquidneck Island winds.

3) Sakonnet Country Club: The 18-hole "Sakonnet" course at the Sakonnet Golf Club facility in Little Compton, Rhode Island features 5,902 yards of golf from the longest tees for a par of 69 . The course rating is 69.7 and it has a slope rating of 122 on Bent grass. Designed by Donald J. Ross, ASGCA, the Sakonnet golf course opened in 1899. Cynde Flanagan manages the course as the General Manager.

4) Newport Country Club: The 18-hole "Newport" course at the Newport
Country Club facility in Newport, Rhode Island features 6,735 yards of golf from the longest tees for a par of 70 . The course rating is 72.7 and it has a slope rating of 129 on Rye grass. Designed by William F. Davis/(R) A.W. Tillinghast, the Newport golf course opened in 1893. Jack Kane manages the course as the General Manager

5) Montaup Country Club: The 18-hole "Montaup" course at the Montaup Country Club facility in Portsmouth, Rhode Island features 6,236 yards of golf from the longest tees for a par of 71 . The course rating is 71.4 and it has a slope rating of 123. Montaup golf course opened in 1923.

In closing, Golf and the law have gone hand and hand for a long time. Making friends and developing business leads, all while chasing a little white ball, just makes for the ideal venture. Although it would just be an estimate I have probably identified about 10-20% of my income that has been derived directly from people I have met playing golf. Simply put, Golf generates camaraderie and a sense of friendship that incidentally improves the bottom line. It’s not easy, but make the time to play and the rewards will be great. FORE!

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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.

Rhode Island DUI/OUI Laws

Laws and Penalties for Drunk Driving in RI

Rhode Island has relatively strict laws on drunk driving/DUI, and the penalties may be different from year to year, depending on any recent legislation being passed by the legislature.

Cases in which a suspect agrees to submit to the breathalyzer test are often times handled differently from those cases in which the suspect refuses the test. A refusal case usually centers on whether the police had a reasonable basis for asking the motorist to submit to a chemical test; however, a breathalyzer test usually involves an effort to suppress the results of the rest itself.

Generally speaking, it becomes easier for the prosecution to prove that a person is incapable of safely operating a motor vehicle if they have agreed to submit to a chemical test and the results are admissible at trial.

There are times when a refusal to submit to the chemical test can create more legal options for the suspect, in terms of their ability to either opt for refusal sanctions or criminal sanctions. These options can prove beneficial for those that may suffer employment consequences if they were to have a criminal conviction on their record.

Of course, different municipalities handle these negotiations differently, and State prosecutions may give rise to changing policy considerations within the Attorney General’s Office, as well as considerations hinging on the fear of negative press coverage. Also, a Judge’s discretion in crafting an appropriate sentence always provides the back-drop for any decision to negotiate a plea or proceed to trial.

No matter what the facts of a given case or the applicable law, it serves a suspect well to have an experienced former prosecutor identify the relevant issues in the case, and utilize them as leverage to negotiate a good result.


If you refuse to take the breath test, your license MAY be suspended for 6 months, and you face other refusal penalties.

RI DUI/OUI Penalties - First Offense Rhode Island Drunk Driving/DUI/OUI Penalties - BAC .08-.10 (over 21)

- Fine $100-$300
- Suspended license for one to six months, up to one year in jail, and a $50 reinstatement fee
- At the discretion of the court, serve 10-60 hours of community service
- Face a Highway Safety Assessment ($500 fee) conducted by the Community College of Rhode Island (CCRI) and possible enrollment in a driving school and/or an alcohol treatment program

RI DUI/OUI Penalties - First Offense with a BAC between .10-.15

- Fine $100-$400
- One year in jail or 10-60 hours of community service
- Suspended license 3-12 months

RI DUI/OUI Penalties - First Offense with a BAC of .15 or Higher

- Fine $500
- One year in jail or 20-60 hours of community service
- Suspended license 3-18 months
- Mandatory participation in a drunken driving course and/or alcohol/drug treatment program.

First Offense Civil Charge of Refusing to take a Breathalyzer/BAC Test - (Relating to a RI DUI/OUI/Drunk Driving Charge)

- Suspended license six months (Mandatory Minimum) to one year
- Fine $200-$500
- Community Service for 10-60 hours
- Highway Safety Assessment Fee ($500)
- Possible enrollment in a driving school and/or an alcohol treatment program
- Pay a $200 fee to support the Department of Health chemical testing program

RI DUI/OUI Penalties - First Offense - 18-21 Years Old with a BAC of .02 or Higher

- Up to 30 hours of community service
- $250 Fine
- License suspended for 3 months, after attending a drunk driving/DWI class and enrollment in an alcohol treatment education program

RI DUI/OUI Penalties - First Offense - 18 or Younger with a BAC of .02 or Higher

- 10-60 hours of Community Service
- License suspended for 6-18 months
- Must enroll in a DWI course and/or an alcohol treatment or education program
- At the judge's discretion a possible highway assessment fine of up to $500
- If you are facing a Second Offense, please call me at 401-487-8691 for more info.

SECOND (2ND) OFFENSE Rhode Island Drunk Driving/DUI/OUI Penalties (over 21)

RI DUI/OUI Penalties - Second Offense (within Five Years) - BAC between .08-.15%

- Fine $400
- Suspended license for up to two years
- Minimum 10 days to one year in jail
- Alcohol or drug treatment
- Possible installation of an ignition interlock system for up to two years

RI DUI/OUI Penalties - Second Offense (within Five Years) - BAC of .15% or Higher

- $1,000 Fine
- Jail for 6-12 months
- Suspended license for two years

Second Offense Civil Charge of Breathalyzer Test Refusal (within 5 years) on a DUI/OUI Arrest

- $600-$1000 Fine
- Suspended license 1-2 years
- 60-100 hours of community service
- Mandatory alcohol or drug treatment
- Face a Highway Safety Assessment ($500 fee) conducted by the Community College of Rhode Island (CCRI) and possible enrollment in a driving school and/or an alcohol treatment program
- Pay a $200 fee to support the department of health's chemical testing programs

RI DUI/OUI Penalties - Second Offense (18 or Younger) with a BAC of .02 or Higher

- $250 Fine in addition to a $300 highway assessment fee
- Up to 60 hours of community service
- Suspended license 3-6 months
- Must enroll in a course on DWI and in an alcohol treatment program

RI DUI/OUI Penalties - Second Offense (18 or Younger) with a BAC of .02 or Higher

- Suspended license until age 21
- At the judge's discretion, a fine of up to $500 and a one year sentence in the Rhode Island Training School (juvenile correctional facility)
- If you are facing a Third Offense, please call 401-487-8691 for more info.

Third (3rd) Offense Rhode Island Drunk Driving/DUI/OUI Penalties (over 21)

RI Penalties - Third (3rd) Offense DUI/OUI, w/BAC between .08-.15%

- Felony
- Mandatory $400 fine
- One to three years in jail
- Two to three years license suspension
- Alcohol or drug treatment
- Ignition interlock device for up to two years after sentence is completed

RI Penalties - Third (3rd) Offense DUI/OUI, w/BAC between .15% or Higher

- Fines $1,000-$5,000
- Jail for 3-5 years
- Suspended license for three years
- At the discretion of the judge the violator's vehicle may be seized and sold by the state

Third (3rd) Offense Civil Charge of Breathalyzer Test Refusal (within 5 years) on a DUI/OUI Arrest

- Fined $800-$1,000
- Up to one year in jail
- License suspended 2-5 years
- Mandatory 100 hours of community service
- Alcohol or drug treatment
- Hearing to determine whether license may be reinstated
- Face a Highway Safety Assessment ($500 fee) conducted by the Community College of Rhode Island (CCRI) and possible enrollment in a driving school and/or an alcohol treatment program
- Pay a $200 fee to support the department of health's chemical testing programs

Additional DUI Charges & Penalties

DUI Resulting in Death

- Jail sentence 5-15 years
- Fined $5,000-$10,000
- Revoked license for 5 years
- At the judge's discretion possible enrollment in an alcohol treatment program

For more information on Rhode Island DUI laws, email me at kevin@kevinhaganlaw.com.

Attorney Kevin Hagan defends people accused of Drunk Driving (DUI / OUI) and other criminal charges such as possession of drugs, assault, criminal traffic offenses, and other charges in courts across Rhode Island. Call today for a free, no-obligation, criminal defense consultation on any RI arrest or charge. (401)-487-8691- 24 hours!

Bail: Guidelines, Hearings & Revocation

This is the first of several blog entries dealing with the right to bail in Rhode Island Courts. Reference to a client’s right to bail should always be made in connection with relevant Rhode Island cases and statutes on the subject. Bail is an extremely important part of the criminal process because it enables a suspect to contribute to their defense in a manner that is quite simply impossible when they are held pending hearing or trial.

R.I. CONST. art I, § 9: Right to Bail – Habeas Corpus

All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by imprisonment for life, or for offenses involving the use or threat of use of a dangerous weapon by one already convicted of such offense or already convicted of an offense punishable by imprisonment for life, or for offenses involving the unlawful sale, distribution, manufacture, delivery or possession with intent to manufacture, sell distribute or deliver any controlled substance or by possession of a controlled substance punishable by imprisonment for ten (10) years or more, when the proof of guilt is evident or the presumption great. Nothing in this section shall be construed to confer a right to bail, pending appeal of a conviction. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety shall require it; nor ever without the authority of the general assembly.

Bail Guidelines

I. General Principles. The purpose of bail is to assure that the defendant will appear in court and keep the peace and be of good behavior.

II. Misdemeanors and Non-Capital Felonies:

1) There is a presumption of personal recognizance unless there is no reasonable assurance of appearance or the defendant presents a danger to the community.

2) If personal recognizance is not sufficient, further conditions shall be the least restrictive as possible to assure appearance and community safety. A release on conditions requires an order of the court.

3) Monetary conditions are allowed only if no other conditions will assure appearance or community safety. The court may not impose monetary conditions solely for the purpose of detention. Monetary conditions are a technique for release not detention, therefore the court shall consider the defendant’s financial ability to post bond.

4) Cash or surety bail may be imposed only if one or more conditions exist:

a. The court is reasonably satisfied defendant will not appear.
b. The court is reasonably satisfied defendant will engage in other criminal contacts.
c. The defendant is a bail, probation or parole violator or has outstanding warrants for failure to appear.

5) If cash or surety bail is required, the court shall state the reasons for such bail. The reasons shall be set forth on a document prepared by State Court administrator.

III. Capital Offenses.

1) The court shall proceed in accordance with Rule 5(a); RIGL § 12-13-1.1 and § 12-13-6 and Article I, Section IX of the R.I. CONST.

2) Where there is no opposition and the state does not object to bail, the court shall proceed in accordance with section II.

IV. Pre-release screening. The following information shall be provided to the Court:

1) Marital status
2) Name and address of dependents
3) Present employment
4) Under care of physician or medication
5) Physical or mental conditions affecting behavior
6) Education
7) Prior criminal record and facts indicating danger to community
8) Prior court appearances or non-appearances
9) Ties to the community
10) Financial resources

V. Guidelines for Amount of Bail.

1) Cash or surety bail shall not exceed the guidelines provided below unless it can be shown that special circumstances exist.

• Bail shall not be pre-determined by the nature of crime but instead an individualized decision will take into account the special circumstances of each defendant.

• A defendant should not be required to post bail on each count in a multiple count complaint unless the charges could be severed for a trial.

a. Misdemeanors: $1000 w/ surety or $100 cash.
b. 5 year felonies: $5000 w/ surety or $500 cash.
c. 10 year felonies: $10,000 w/ surety or $1000 cash.
d. 20 year felonies: $20,000 w/ surety or $2000 cash.
e. 20+ year felonies: $50,000 w/ surety or $5000 cash

2) Whenever bail exceeds the guidelines, the court shall articulate reasons on the record (first, the reason for cash or surety bail and second the reason for exceeding). Reasons for departing from the guidelines include:

• Likelihood of conviction and likely sentence.
• Outstanding warrants or detainers.
• Previous record of non-appearance.
• Physical or mental condition affecting defendant’s behavior.

Primary Purpose of Bail

State v. Abbott, 322 A. 2d 33, 35 (R.I. 1974). “The primary purpose of bail, be it of the pretrial or the post-conviction variety, is to assure a defendant’s appearance in court at the appointed time.”

Mello v. Superior Court, 370 A.2d 1262, 1267 (R.I. 1977) (Dorris, J. dissenting). “The right to bail is a cornerstone of our criminal justice system. The practice of admission to bail as it has evolved in Anglo-American law is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.” Citing Stack v. Boyle, 72 S. Ct. 1, 5 (1951) (concurring opinion).

Discretion to Set Bail

Witt v. Moran, 572 A.2d 261 (R.I. 1990). Setting bail is always within the courts discretion, regardless of the offense, and cannot be prohibited by statute.
“Bail and the revocation of bail are within the judicial sphere of government and cannot be entirely delegated to the Legislature. Even if bail may be denied, therefore, the trial justice must exercise his or her discretion in deciding whether to grant bail and consider the factors that we set out in
Abbott. In deciding whether to grant bail, the trial justice must make findings of fact on the record that relate to the individual defendant’s dangerousness.” Id. at 265

Review of Decision

A District Court’s decision regarding bail is reviewable in Superior Court in a habeas corpus petition pursuant to R.I. GEN. LAWS § 10-9-19, as well as SUP.CT.R.CRIMINAL P. 46 (i), which governs the court’s general supervisory power over felony offenses. A Superior Court’s decision regarding bail is reviewable by the Supreme Court on writ of habeas corpus or certiorari.

Right to Speedy Hearing

Mello v. Superior Court, 370 A.2d 1262, 1266, (R.I. 1977). A person arrested and held without bail must be brought before a justice within forty-eight hours. If the court holds the defendant without bail, a bail hearing date must be set within ten business days, excluding weekends and holidays.

Evidentiary Standard

The court is required to make a two-tiered finding after a bail hearing:
Under tier one, the court must weigh the evidence, in the light most favorable to the state, without assessing credibility, to determine if `proof of guilt is evident or the presumption great` that a non-bailable offense was committed and that the defendant committed it. If the tier one is satisfied, the court may hold the defendant without bail unless discretion is exercised under tier two.
`Proof of guilt evident or presumption great` is a standard higher than probable cause and equivalent to reasonable satisfaction standard of a violation hearing.
Massey v. Mullen, 366 A.2d 1144 (R.I. 1976).
“the standard of proof at a bail hearing was, for all intents and purposes, the same as that at a violation hearing. Id. at 1147.

“to interpret the words ‘when the proof of guilt is evident or the presumption great’ as signifying no more than probably cause would render Art. I, § IX meaningless, since in no event may an accused be lawfully imprisoned without a preliminary showing of probably cause.” Id. at 1148.

Under tier two, a court may exercise its discretion to set bail in light of defendant’s ties to the community, respect for the law, and the likelihood of conviction at trial.
State v. Abbott, 322 A.2d 33, 35 (R.I. 1974). Sets out the types of evidence to be considered at bail hearings in general:
The habits of the individual regarding respect for the law in regard to whether the defendant’s release would pose a threat to the community.
Local attachments to the community by way of family ties, business, or investments.
The severity of the likely sentence imposed and the question of whether the defendant would remove himself or herself from the jurisdiction of the court.

SUP. CT. R. CRIM. P. 46(c): Terms (of Release on Bail)

If the defendant is admitted to bail, the terms thereof shall be such as in the judgment of the court will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the financial ability of the defendant to give bail, the character of the defendant, and the policy against unnecessary detention of defendants pending trial.

Massey v. Mullen, 366 A.2d 1144 (R.I. 1976). A bail hearing, unlike a violation of probation hearing, is forward-looking; therefore, the state’s evidence must be admissible at trial.
“…the state must make out a case that demonstrates not only a factual probability of guilt but it must produce evidence that is legally sufficient to support a conviction.”
Id. at 1148.

Gillissie v. Vose, December 20, 1996 unpublished Supreme Court Order. The defendant may elect to call witnesses and introduce evidence on his own behalf.
“…The hearing justice may permit the petitioner to present such evidence as may be appropriate, including testimony of defense witnesses and any rebuttal thereto, to permit the hearing justice to exercise his discretion on the question of bail…
As a practical matter, a bail hearing can be an opportunity to conduct discovery and cross examine witnesses at a time before the State has had ample time to prepare their case. This record can be used at a subsequent trial to impeach the credibility of witnesses with inconsistent prior testimony. Also, an effective defense can have a positive impact on any potential resolution of the case. In short, a bail hearing should be construed as an opportunity to define your case and explore witness credibility at an early stage in the proceedings.

Rhode Island Probation and Parole

It's understandable if you've used "parole" and "probation" interchangeably -- they both describe the legal status of an offender who has been conditionally released into the world.

But parole and probation are not the same thing. They actually describe two different punishments and processes -- one carried out by the traditional criminal justice system, and the other by the correctional system.

Plus, only parole, by definition, involves jail.

This is because probation is actually an alternative to jail. Though a judge may order a defendant to serve probation in addition to prison time, it's often served alone.

On the other hand, parole is a conditional release from prison. A defendant is ordinarily sentenced to jail "with the possibility of parole." After serving a designated percentage of his sentence, he can ask the parole board to grant him early release. If he meets the requirements -- good behavior, usually -- he is paroled.

Unlike with probation, there is no judge involved.

Despite these differences, parole and probation do share one major similarity. Both probationers and parolees are subject to a list of conditions. They must meet with a supervising officer; attend counseling and rehab; hold a job; and/or not break the law. If they fail to comply with the rules of parole or probation, they can be sent to jail.

Still, in the end, it is a judge that revokes probation, and a parole board that revokes parole. Both parole and probation may ultimately have the same effect, but they do operate in slightly different spheres. In Rhode Island, a failure to keep the peace and be of good behavior can result in the State filing a 32(f), which theoretically puts the probationer on notice that the State is alleging they failed to abide by the conditions of their sentence. If a Judge is “reasonably satisfied” that the probationer has failed to keep the peace, their sentence can be violated and they can be sentenced to serve all or a portion of the time that is hanging over their head.

Rhode Island tends to utilize unusually long periods of probation, which puts the probationer at great risk to serve a lengthy jail sentence if they are violated under these circumstances. Of course, the probationer is entitled to a hearing, and the rules of evidence apply (although not in their stricture).

Probation violations are adjudicated in District Court and Superior Court, and it is often possible that adjudication in one Court can affect the relative outcome in the other Court if a Defendant is on both District Court probation and Superior Court probation. There exists no right to a jury trial because these hearings are civil in nature; however a finding of no violation can be favorably dispositive of the actual charges if and when they occur.

In light of the fact that the Judge has an enormous amount of discretion in these cases, it is best advised to have an experienced attorney negotiate the matter and raise all possible legal issues if in fact the matter is litigated pursuant to a hearing.

Kevin featured on Libby Kirwin's blog

The following article was recently featured on Libby Kirwin’s real estate blog, “Living with Libby.”
Click here to view the post on Libby’s site.

“Men We Love: Kevin Hagan, Esq.”

“After spending four years at the office where I began Libby Kirwin Property Management, I was happy to turn over the keys to my office at 105 Memorial Blvd to Attorney Kevin Hagan, as he began his new venture as a solo law practitioner.

“Of course, I knew that Libby would be able to secure me the perfect spot,” said Kevin. “I love the office on Memorial Boulevard as much as she did and we all know that location, especially in Newport, is paramount.”

After attending Providence College, Kevin earned his law degree from Roger Williams Law School and later served on the university’s Alumni Board.  Having recently gone the route of a solo practitioner, Kevin enjoys a broad spectrum of practice areas including family court cases, criminal cases and accident cases of every variation.

“It has been an exciting and rewarding experience to live and work in Newport with my wife Domenica and son Thomas.” Newport is a city that has captivated Kevin since the time he used to visit as a child.  Having the opportunity to represent the legal interests of others that also live in Newport County was spawned as a young prosecutor in the Newport Office of Attorney General, and prior to that, as a Newport Superior Court Law Clerk.

Kevin feels he has been fortunate to learn this job from the ground up. He trained to be a trial lawyer with some of the greatest litigators that have practiced in this region.  However, his transition into private practice began with the most important consideration of all – finding the perfect office!

Kevin serves as an adjunct professor of Legal Studies at the Community College of Rhode Island, and he was recently appointed by the Chief Judge of the Rhode Island District Court to serve as a Justice of the Peace and Bail Commissioner in Newport County.

Newport enjoys a close knit bar, and Kevin says it has truly been a privilege to be able to serve the residents of Newport County and try a few cases along the way!

"The Newport Lawyer"

It has been an exciting and rewarding experience to work and live in Newport, Rhode Island – a city that has captivated me since the time I used to visit as a child. The opportunity to represent the legal interests of others that also live here was spawned as a young prosecutor in the Newport Office of Attorney General, and before that, as a Newport Superior Court Law Clerk. I have been fortunate enough to learn this job from the ground up, training to be a trial lawyer with some of the greatest litigators that have ever practiced in this region. My transition into private practice began under the tutelage of Joseph “Terry” Houlihan, and he spent the time to show me what this profession was all about. Although Terry has recently been elevated to the bench as a District Court Judge, I have gone the route of a solo practitioner, handling primarily family court cases, criminal cases and accident cases of every variation. Newport enjoys a close knit bar, and it has truly been a privilege to be able to serve the residents of Newport County and try a few cases along the way!

"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.

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.

"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)

"Rhode Island Breathalizer Issues"

Cross-examination of the prosecution expert can make a point to the jury that the defendant's rights should not be determined by small samples and breath-alcohol measurements involving miniscule quantities. The cross-examiner could probably get an admission from the expert that, if the amount of alcohol involved in a particular test were on a table in front of the jury, they could not see, smell, taste, or feel it. However, it would probably do the cross-examiner no good to push the expert too far on the matter of minute quantities since, given an opportunity, the expert would point out that making measurements of small quantities is not uncommon with modern laboratory procedures. Cross-examination of the expert to emphasize to the jury the opportunity for error in measuring extremely minute quantities of breath-alcohol might run as follows: ...

Q. Breath analysis for alcohol amounts to this, doesn't it: a breath-test device collects a certain amount of air exhaled from the subject's lungs and passes that air through the chemicals in a test ampoule; the chemicals gather the alcohol out of the sample; and the device measures the alcohol absorbed by the chemicals.

A. That is right.

Q. Any claim to accuracy made for breath-testing devices assumes that the procedure measures almost infinitesimal quantities of alcohol found in the breath, is that correct?

A. Yes.

Q. As I understand it, a Breathalyzer collects the equivalent of 52.5 cubic centimeters of breath, is that correct?

A. That is correct.

Q. How many cubic inches does 52.5 cubic centimeters amount to?

A. A little more than 3 cubic inches.

Q. And the breath-alcohol reading is converted by the testing device into a blood-alcohol reading?

A. Yes.

Q. You have testified to a blood-alcohol reading of the defendant's breath sample taken on , of 0.15 percent, is that correct?

A. Yes.

Q. A reading of 0.15 percent blood-alcohol presumes to indicate that in the defendant's blood there were 15 parts by weight of alcohol in every 10,000 parts of blood, is that correct?

A. That is correct.

Q. And since the specific gravity of alcohol is quite close to four-fifths that of whole blood, that same concentration would amount to only two parts of alcohol by volume in every 1000 parts of the defendant's blood, is that correct?

A. Yes.

Q. However, it was the defendant's breath that was tested and not his blood?

A. Yes.

Q. And breath tests for alcohol are not as precise as blood tests for alcohol, is that correct?

A. Yes.

Q. Hasn't the alleged relationship between breath-alcohol and blood-alcohol been stated in fixed terms, presumably applying to all persons?

A. Yes.

Q. What is that relationship?

A. It is 1:2100. Blood-alcohol is 2100 times greater than breath-alcohol in a given subject.

Q. However, aren't there individuals in whom the relationship varies from the average?

A. Yes.

Q. If we accept, just for the moment, a breath-alcohol to blood-alcohol ratio of 1:2100, the quantity of alcohol measured in the breath sample would be equal to the quantity of alcohol to be found in 1/40th of a cubic centimeter of the defendant's blood?

A. That is correct.

Q. Is it true that one cubic centimeter of a liquid such as blood is equivalent to 0.034 fluid ounces, or very close to 1/30th part of an ounce?

A. That is correct.

Q. So, then, the amount of alcohol in the breath sample collected from the defendant would be equivalent to the amount we would expect to find in 1/30th part of 1/40th part of an ounce, 1/1200th part of an ounce, or 0.00085 ounce of his blood?

A. Yes.

Q. To pin these extremely small amounts down further, since there are 480 drops in an ounce by apothecaries' fluid measure, the equivalent in blood of the amount of breath analyzed is less than half a drop—amounting, as a matter of fact, to 408/1000ths of a drop?

A. That is correct.

Q. And the amount of alcohol gathered by the chemicals to produce a blood-alcohol reading of 0.15 percent would be equivalent to only 2/1000ths of that half drop of blood, or eight ten-thousandths of a drop, or five hundred-thousandths of a cubic centimeter, or seventeen ten-millionths of an ounce?

A. I assume you are correct.