This article by RI Speeding Attorney Kevin Hagan discusses some of the key cases and legal defenses to speeding violations in Rhode Island. Read More...
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. Read More...
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.
Due to the proximity of Rhode Island to many other states in New England, it is quite common for a driver arrested for an offense in Rhode Island to have been operating pursuant to a valid foreign drivers license. Generally, the foreign driver’s license is either from Connecticut, Massachusetts or New York. A person’s privilege to operate a motor vehicle in the State of Rhode Island could be revoked or suspended, despite the fact that the person may have a valid driver’s license from one of the aforementioned states. This creates a very difficult situation for law enforcement, because rather than charging the motorist with driving after the denial, suspension or revocation of their license, the police would be required to charge the defendant under the separate statute of operation under a foreign license during suspension or revocation in the State of Rhode Island.
The difference between these two state statutes is enormous from a legal perspective. Operation under a foreign license during suspension or revocation in the state of Rhode Island is a criminal statute without a specific penalty provision. On the other hand, driving after the denial, suspension, or revocation of a driver’s license is a separate and distinct criminal statute with a very specific criminal penalty.
In State v. DelBonis 862 A.2d 760 (RI 2004), The Rhode Island Supreme Court was very clear that a criminal statute without a penalty provision is void for lack of enforcement. In other words, it is not the function of the trial court to construe a penal statute to create a criminal penalty in a statute that specifically lacks a penalty provision. Every criminal statute must contain a penalty, and this is one of the foundations of our criminal law which developed from the deep seeded resentment of the Star Chamber method of trial.
Also, pursuant to well established cannons of statutory construction, penal statutes must be strictly construed in favor of the party. It is a basic horn book law that every criminal statute must provide for a penalty and that a conviction for a violation of a statute containing none cannot stand. Because our Rhode Island statute dealing with motorists who are operating on a valid foreign driver’s license at a time where their privilege to operate has been revoked in Rhode Island does not contain an applicable penalty, a case against the Defendant pursuant to this statute must be dismissed.
In the event that the prosecution attempts to amend their complaint to charge driving after denial, suspension, or revocation of license, which statute does contain a penalty provision, the Defense Attorney should object because a complaint may not be amended under these circumstances without the consent of the Defendant. Of course, many times by the time the prosecution realizes their mistake, it is too late, and this oversight will work to the benefit of the criminal Defendant.
If you are charged with Driving on a Suspended License, when in fact you have a valid foreign driver’s license, contact an experienced Criminal Defense Attorney for purposes of arguing the invalidity of the subject statute in Rhode Island.
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.
"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."
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: Read More...
"In Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections under the law."
In cases where the police should have recognized that the cause of the apparently intoxicated behavior was not alcohol, but was instead a medical condition from which the subject was suffering, a cause of action may exist against the police for failure to assure that the defendant was immediately delivered to a hospital for medical treatment. Of course, it becomes very important to provide alternate reasons for the suspect’s failure to properly perform standardized field sobriety tests.
In one Federal case, officers had probable cause to arrest motorist at roadblock, and such seizure did not violate his civil rights, where officer received report that possibly intoxicated driver was slumped over steering wheel of vehicle parked on shoulder of interstate, motorist's appearance indicated that he had been drinking, motorist declined to answer officer's questions and drove away without explanation, motorist failed to stop when officer engaged his emergency equipment, bumped motorist's vehicle,and shot out his tires, and motorist swerved to prevent officer from passing him. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983. Latta v. Keryte, 118 F.3d 693 (10th Cir. 1997). Read More...