"Rhode Island DWI or DUI charge usually falls into one of two categories"

A Rhode Island DUI or DWI charge is defended against differently depending on whether a suspect agreed to take the chemical test or whether they refused. Once a suspect has agreed to take the test, and performs above the requisite blood alcohol level for intoxication, a criminal defense attorney must focus on attacking the admissibility of the subject test.

One or more scientific tests presently are conducted in all jurisdictions on driving-while-intoxicated suspects for the purpose of (1) bolstering and corroborating police opinion testimony of intoxication and, (2) in those states that set presumptive blood-alcohol intoxication levels, to demonstrate that the defendant's blood-alcohol level exceeded the permissible. Use of evidence of blood-alcohol concentration helps standardize the opinions of experts and minimizes reliance on the traditional evidence of intoxication on which opinions can vary so widely. Where a scientific test has been made on the defendant, it often is the main weapon of the prosecution, with all other evidence being used to corroborate the test results.

There are four basic scientific tests which may be conducted to determine the degree of intoxication: blood, urine, breath, and saliva tests. The results of urine, saliva, and breath tests for alcohol must be converted into a blood-alcohol reading in order to be useful in determining whether the subject was intoxicated.

Cases:

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); West's Key Number Digest, Criminal Law 662.8.

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); West's Key Number Digest, Automobiles 422.1.

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); West's Key Number Digest, Automobiles 144.1(1.20).

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); West's Key Number Digest,Obstructing Justice 5.

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); West's Key Number Digest, Criminal Law 662.8.

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); West's Key Number Digest, Automobiles 425.

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.

Automatic or per se DWI statutes

Cases:

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); West's Key Number Digest, Limitation of Actions 316.

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); West's Key Number Digest, Automobiles 332.

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); West's Key Number Digest, Automobiles 316.

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); West's Key Number Digest, Automobiles 316.

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); West's Key Number Digest, Automobiles 411.

Courts across the nation are making it more difficult to challenge the reliability of chemical tests. In Rhode Island, the most effective arguments are often times made to a jury. Statutory presumptions and protocol for the test’s admissibility are more easily understood by Judges confronted with these issues every day; however, when a jury is involved, the mystique of this computerized machine becomes the subject of doubt, speculation and questionable engineering.

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

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

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

Cases:

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

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

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

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

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

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

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

Flushed face caused by:

Blushing
Diabetes
High blood pressure
Menopause
Poisoning
Sunstroke

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

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

Eye disorder caused by:

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

Speech disorder caused by:

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

Poor coordination (ataxia) caused by:

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

Hallucinations (delirium) caused by:

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

Drowsiness caused by:

Anemia
Brain concussion
Diabetes
Drugs
Sickness

Unnatural heavy sleep (coma) caused by:

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


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

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

Alternatively, a suspect may be asked to put his finger to his nose, to balance on one foot, perhaps with the eyes closed, to balance on a narrow stool, to stand or walk heel to toe, to work mathematical problems, or to do any other task where the results are thought likely to corroborate police opinion of intoxication. However, the successful or unsuccessful accomplishment of any of the above tasks indicates little or nothing regarding intoxication in the light of individual performance differences and the effect of various medical conditions on performance.

The police have sometimes shone a light into the eyes of a suspect and testified that the manner of the contraction of the pupil indicated intoxication. However, medical authorities do not presently consider the manner of contraction of the pupil to have substantial relationship to intoxication, at least when the suspect's normal reaction is not known.

The arresting officer's testimony as to the slowness of the pupils to react may be easily discredited as a valid intoxication test if the arresting officer had no mechanical means of timing the slowness of pupil reaction. It also is apparent that the officer is not qualified medically to distinguish other conditions that might cause slowness of pupil reaction.

Cases:

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

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

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

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

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

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

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

"A trial on a charge of driving while intoxicated may raise constitutional issues"

A trial on a charge of driving while intoxicated may raise constitutional issues, such as whether there was probable cause for the arrest, whether adequate warnings were given to the suspect as to his rights, whether there was an intelligent waiver of rights, whether there was duress sufficient to raise a defense of self-incrimination, and whether there might have been a violation of equal protection and due process guarantees. The various constitutional questions noted above are necessarily left largely unanswered, because few of such questions have been satisfactorily answered by the courts in the context of prosecutions for driving while intoxicated. Decisions of the United States Supreme Court on these constitutional issues have been rendered in cases involving felonies such as murder, burglary, theft, and possession of narcotics, but the application of such decisions to driving-while-intoxicated cases are not always clear in most instances.

At the present time, United States Supreme Court decisions do not support a contention that requiring an accused to submit to chemical intoxication tests violates his fifth amendment privilege against self-incrimination. In considering the constitutionality of a state's implied consent statute, counsel should carefully note the impact of several United States Supreme Court decisions. In a leading case, Rochin v. California, 342 US 165, 96 L Ed 183, 72 S Ct 205, 25 ALR2d 1396, decided in 1952, police conduct in having an accused's stomach pumped to determine if he had swallowed narcotics was held to be so objectionable that a subsequent confession was inadmissible as coerced. However, in another, later case, Breithaupt v. Abram, 352 US 432, 1 L Ed 2d 448, 77 S Ct 408, decided in 1957, results of analysis of a blood sample taken by a physician while the subject was unconscious was held to be admissible as not violating the defendant's rights. In the famous Miranda decision, Miranda v. Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602, 10 ALR3d 974, the Supreme Court in 1966 held that, in order to render a confession admissible, warnings must be given prior to in-custody interrogation of individuals suspected of commission of a felony. In Schmerber, Schmerber v. California, 384 US 757, 16 L Ed 2d 908, 86 S Ct 1826, decided later in the same term of court, results of an analysis of a blood sample taken at a hospital while the suspect was conscious was held to be admissible in evidence as not violating due process or other constitutional safeguards.

Thus, the defense attorney should be prepared to raise all possible constitutional objections under both the federal and state constitutions. Defendants often have a double chance for acquittal on constitutional grounds—one under the federal and one under the state constitution. The state court may be more solicitous of a suspect's rights under state constitutional provisions than was the United States Supreme Court in Schmerber v. California. Of course, this is not generally the case.

In one State circumstance, two South Dakota police officers stopped the defendant's car after they saw him fail to stop at the stop sign. The defendant failed field sobriety tests and he was placed under arrest and read his Miranda rights. The defendant then refused to submit to a blood-alcohol test, saying that he was too drunk to pass it. South Dakota law specifically declares that refusal to submit to a blood-alcohol test "may be admissible into evidence at the trial". Nevertheless, the defendant sought to suppress all evidence of his refusal to take the test. A South Dakota Circuit Court granted the suppression motion, holding among other things, that allowing evidence of refusal violated the defendant's federal constitutional rights. On appeal, the South Dakota Supreme Court affirmed the suppression of the act of refusal on the grounds that the state statute, which allowed the introduction of this evidence, violated the federal and state privilege against self-incrimination. On certiorari, the United States Supreme Court reversed and remanded. In South Dakota v. Mellive (1983, US) 74 L Ed 2d 748, 103 S Ct 916, it was held that the admission into evidence of defendant's refusal to submit to the blood-alcohol test did not offend the Fifth Amendment right against self-incrimination since the refusal to take such a test, after a police officer had lawfully requested it, was not an act coerced by the officer and since the offer of taking the test was clearly legitimate and became no less legitimate when the state offered the second option of refusing the test, with the attendant penalties for making that choice.

"Not only are driving under the influence arrests more plentiful, they are becoming more difficult to effectively defend."

Not only are driving under the influence arrests more plentiful, they are becoming more difficult to effectively defend. Within the last few years, many of the once famous "loopholes" have been tightened in an effort to successfully prosecute DUI suspects. Rhode Island's Pimental case stands for the proposition that sobriety checkpoints are violative of the Rhode Island Constitution; however, even well established case law such as this will likely change in the years to come. With a legislature that is more and more educated about drunk driving statistics and a Supreme Court that is generally more conservative in composition than those of the past, DUI laws will inevitably evolve to obviate legal arguments that once existed. As this happens, Rhode Island Criminal Defense Lawyers will need to become more vigilant about analyzing current laws, regulations and cases that impact the legal and constitutional rights of their clients.

Check out this great article on projo.com:
Drunken driving accidents, arrests plentiful in R.I.
http://www.projo.com/news/content/2009_drunken_driving_12-29-09_09GSOV7_v48.3cf7196.html