"In Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections"

In Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections under the law. Most police agencies now take the position that the court-recognized status of a driver's license as a privilege, coupled with the statutory authorization for chemical intoxication tests in driving-while-intoxicated cases, amounts to a waiver of a suspect's constitutional rights against self-incrimination and the right to counsel prior to questioning and the giving of the test, unless otherwise provided by state law. Consequently, the normal order of police routine involves (1) a demand on the suspect to take the test, (2) extensive questioning, (3) performing the test, and finally, (4) an offer of an opportunity to the suspect to consult counsel.

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).

In Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections under the law. Most police agencies now take the position that the court-recognized status of a driver's license as a privilege, coupled with the statutory authorization for chemical intoxication tests in driving-while-intoxicated cases, amounts to a waiver of a suspect's constitutional rights against self-incrimination and the right to counsel prior to questioning and the giving of the test, unless otherwise provided by state law. Consequently, the normal order of police routine involves (1) a demand on the suspect to take the test, (2) extensive questioning, (3) performing the test, and finally, (4) an offer of an opportunity to the suspect to consult counsel.

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).

Initial stop of driver for seat belt violation did not preclude officer from conducting reasonable inquiry and investigation to insure both his safety and that of others. and, thus, officer's observations during initial stop could form basis of probable cause to arrest for driving under the influence (DUI), driving without license, and driving without proof of insurance. O.C.G.A. § 40-876.1. Temples v. State, 228 Ga. App. 228, 491 S.E.2d 444 (1997).

In Courange v. State (1973, Okla Crim) 510 P2d 961, a conviction of operating a motor vehicle while under the influence of intoxicating liquor was reversed upon showing that the arrest of the defendant took place on university property and not on a city street.

The police had authority to have a blood test performed on the defendant where (1) an officer arrived at the scene of an automobile accident which occurred when a parked car was struck from behind by the defendant's moving vehicle, (2) the officer found the defendant partially outside his vehicle and detected a strong odor of alcohol, and (3) the defendant stated that he was coming from a Grateful Dead concert (even though no such concert had recently occurred in the area) and that he was a member of the Grateful Dead.Commonwealth v. Simon (1995, Pa Super Ct) 655 A2d 1024.

Motorist who had been involved in automobile accident at 1:30 A.M. outside bar and had bleeding laceration on his chin, and who had been drinking and had failed field sobriety tests, was in suspicious place, and thus, police officer could make warrantless arrest of motorist on basis of reasonable belief that motorist had committed crime of driving while intoxicated (DWI), which constitutes breach of the peace, while in suspicious place. Vernon's Ann.Texas C.C.P. art. 14.03. Cooper v. State, 961 S.W.2d 229 (Tex. App. Houston 1st Dist. 1997), reh'g overruled, (Aug. 13, 1997) and petition for discretionary review refused, (Nov. 19, 1997) and reh'g on petition for discretionary review denied, (Jan. 7, 1998).

Proving incompetent administration of tests: Results of field sobriety tests did not provide probable cause to arrest motorist for driving under the influence of alcohol (DUI), where city police officer administered the tests incompetently and in ways that could completely undermine their reliability; for example, National Highway Traffic Safety Administration (NHTSA) required minimum of 32 seconds for horizontal gaze nystagmus (HGN) test and minimum of 12 seconds for vertical gaze nystagmus (VGN) test, but officer performed the tests in 19 seconds and 3.5 seconds, respectively, and officer also did not comply with NHTSA standards for administering one-leg stand test and walk-and-turn test. U.S.C.A. Const.Amend. 4. Strickland v. City of Dothan, AL, 399 F. Supp. 2d 1275 (M.D. Ala. 2005); West's Key Number Digest, Automobiles 349(6).

Administering a breathalyzer test and having a defendant perform the field sobriety test on videotape after a DUI arrest are nothing more than the collection and preservation of physical evidence, and they do not constitute a crucial confrontation requiring the presence of counsel. State v. Burns (1995, Fla App D5) 661 So 2d 842, 20 FLW D 1942.

Exclusion of the results of driver's blood alcohol test and DUI videotape on relevance grounds was reversible error, where driver who had been arrested on a DUI charge sued officer for false arrest, and after a jury verdict for officer, contended that the test results and the videotape made 2 hours after her arrest were relevant and should have been admitted. Tracton v. Miami Beach (Fla App, 1992) 616 So 2d 457, 18 FLW D 86.

Admission of videotape of defendant's arrest did not violate defendant's right to privacy in prosecution for driving under the influence (DUI), where videotape captured defendant's actions on a public street. State v. Ditton, 2006 MT 235, 333 Mont. 483, 144 P.3d 783 (2006); West's Key Number Digest, Automobiles 354(6).

Videotape of defendant's police station booking was relevant evidence in prosecution for driving under the influence of alcohol (DUI); videotape showed defendant walking and talking, and jury might have found videotape useful to determine whether defendant was intoxicated. N.R.S. 48.015. Angle v. State, 942 P.2d 177 (Nev. 1997).

Videotape of exchange between defendant and police officer at police station after defendant's arrest was not irrelevant and prejudicial and thus admissible in prosecution for speeding and driving under influence of alcohol. Defendant's overall demeanor, including his use of profanity and verbal threats toward police officer, was relevant to whether he was under influence of alcohol, and evidence about accused's own action or language, so long as it is relevant to essential elements of offense, cannot be "unfairly prejudicial."State v. Geasley (1993, Summit Co) 85 Ohio App 3d 360, 619 NE2d 1086.

Defendant did not carry his burden of showing that videotape of his drunk driving arrest, which police officer erased because it did not show performance of any field sobriety tests, would have been favorable to his case and would have contradicted arresting officer's testimony regarding defendant's actions and the nature of his speech, so as to show due process violation, through another witness whose testimony that he saw just a little, including defendant using his hands for balance, was not inconsistent with officer's testimony. U.S.C.A. Const.Amend. 14. State v. Clark, 171 Or. App. 1, 14 P.3d 626 (2000); West's Key Number Digest, Constitutional Law 268(5).

Sufficient evidence supported finding that defendant was guilty of driving while intoxicated (DWI), even though videotape of defendant at police station indicated that defendant was cooperative, followed directions, was able to recite alphabet and count backwards, defendant and friend testified that defendant was tired from working and had only one beer, and there was dispute about whether beer cans were found in car, where tip was received that there was someone unconscious in middle of road, when firefighter approached car, engine was running and in gear, defendant was passed out in driver's seat, siren and emergency lights did not wake him, firefighter put car in park and took keys, police officer noticed smell of alcohol, and when defendant did wake, his speech was slurred, he seemed woozy, he weaved when he walked, he could not finish recitation of alphabet correctly, and he could not count backwards. Perkins v. State, 19 S.W.3d 854 (Tex. App. Waco 2000), petition for discretionary review refused, (Oct. 11, 2000); West's Key Number Digest, Automobiles 355(6).

Testimony of arresting officer and officer who assisted in videotaping motorist supported conviction for driving while intoxicated, even though arresting officer conceded that some of factors indicating that motorist was intoxicated could have been consistent with motorist possessing normal use of his faculties, and despite existence of sobriety tests which officer did not administer, criticism of horizontal gaze nystagmus test (HGN) test, and claim that videotape contradicted assisting officer's testimony; officers indicated that motorist could not complete one-leg-stand test, had slurred speech, reeked of alcohol, and exhibiting mood swings. Downs v. State, 947 S.W.2d 312 (Tex. App. Fort Worth 1997), reh'g overruled, (July 24, 1997).

Trial court in prosecution for driving under influence of alcohol properly admitted videotape of defendant's post arrest interrogation and field sobriety testing, where, because tape did not show defendant invoking right to remain silent (and therefore was not attempt to use silence against defendant), and because tape showed defendant's attempt to feign hearing impairment, tape was not admitted in violation of right to remain silent. Raffaelli v. State (1994, Tex App Texarkana) 881 SW2d 714, petition for discretionary review ref (Nov 30, 1994).

Error in admission of videotape showing defendant taking sobriety test consisting of recitation of alphabet from "f" to "w" and of his efforts to count backwards from 90 to 75, although violating his right against self-incrimination, was harmless. Vickers v. State (1994, Tex App Fort Worth) 878 SW2d 329.

The trial court erred by admitting portions of a videotape depicting the defendant's custodial statements in response to a sobriety test in violation of his rights under the Fifth Amendment, where after arresting the defendant for driving while intoxicated, the officers videotaped the defendant, who failed to recite the alphabet from "f" to "w" and to count backwards from 90 to 75, without being given Miranda warnings, because defendant's response was testimonial in nature since it showed that his mind was confused. Vickers v. State (1994, Tex App Fort Worth) 878 SW2d 329.

As can be seen, constitutional provisions generally become muted in the context of driving under the influence prosecutions. The penumbra of implied consent laws and “testimonial” obviation combines to favor the use of evidence garnered by police officers.

"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.