In order to be convicted of DUI, it must be shown that you were driving or in actual physical control of a moving vehicle. The burden is on the State to show that the officer had a reasonable, particularly suspicion for stopping or approaching the vehicle. If you were stopped at a roadblock, the prosecutor must show that the roadblock was set up in accordance with the Fourth Amendment to the U.S. Constitution. These issues are somewhat complex. Lawyers who only handle the occasional DUI will not be aware of the latest cases that affect your rights.

The next stop in a DUI case is the officer’s roadside determination that there is probable cause to arrest you for DUI. The State must show that it is likely that you were a less safe driver as a result of drinking alcohol. Many cases involve the use of field sobriety tests. These tests can help an officer make up his mind about whether you should be arrested OR bolster his previously formed opinion that you are DUI.

After you are arrested, the officer MUST read at the time of arrest the correct Implied Consent warnings. These warnings must be read in substantial compliance with the statute.

In most DUI’s the final part of the case is the State administered test or lack of a test. If a test is given, the State must prove that the test was done properly and on a machine that was working properly. [Top]

HOW CAN WE HELP YOU?

We will make sure that the State can prove all of the elements of the case. We are entitled to all reports that are favorable to your defense and the identity of all witnesses who may testify against you. We frequently review a videotape prior to going to court. Most prosecutors will allow us to watch the videotape before we go to court, and we can usually obtain a copy from the police with an Open Records Act request. These tapes are very helpful in the defense of a case.

We are entitled to contest certain aspects of the case prior to a trial. We use motions to suppress evidence that has been gathered illegally. In some cases, a granting of a motion or the presentation of a motion to the State will cause them to reduce the charges. We do whatever we can to win the case before we go to trial. In the event that a trial is necessary, we know the expert witnesses who can testify about the field sobriety tests or chemical tests. We can make no promises except one: There is a 100% chance that you will be found guilty if you plead guilty.

IMPORTANT NOTE: If you took a test and the result exceeded .02 (if you are under age 21), .04 (if operating a commercial vehicle), or .08 (all others) or if you refused the test, you must call us as soon as possible so that your privilege to drive is not taken away before we ever set foot in the courtroom. [Top]

ADMINISTRATIVE LICENSE SUSPENSION

Your driver’s license can be suspended before your criminal case is resolved. It is possible to suffer a suspension of your license and then be found not guilty at trial. There are two ways to have your license suspended before you are convicted of DUI.

1. If you refuse to take the requested State administered chemical test.

2. If you take the test and the result is a "per se" violation.

“Per Se” is the blood alcohol level above which it is illegal to drive even if you are not less safe. The illegal act is simply having that specified amount of alcohol in your body. These levels are 0.08 grams or more if arrested after July 1, 2001 and you are age 21 or over, 0.02 if you are under 21, and 0.04 if you were operating a commercial vehicle. (If arrested before July 1, 2001 and you are age 21 or over, the legal level is 0.10 grams or more.)

Following the arrest and test or refusal, the officer is supposed to submit a sworn report to the Department of Motor Vehicles to initiate an administrative license suspension hearing.. This process is separate and distinct from the criminal hearing. The “only” penalty is loss of your privilege to drive; no criminal penalties can be imposed in the administrative license suspension proceeding. The Administrative hearing is conducted by the Traffic Court Office of State Department of Motor Vehicles (Harris Avenue, Providence). If you either refuse to take the test or register a "per se" alcohol level, you have ten business days to request an administrative hearing. If you do not request the hearing with ten business days, the following penalties apply: [Top]

REFUSING THE TEST

If a police officer reads the Rhode Island  Implied Consent Warning to you, you are may either take or refuse the State test. Should you refuse to take a test, your license can be suspended for up to one year without any work permit. The only way to get your license back is to win your DUI case in court or have the case reduced to a non-DUI charge. If you did not send a letter within 10 days of arrest, your license will be suspended on the 31st day after arrest. [Top]

RHODE ISLAND

REMEMBER. YOU HAVE 10 BUSINESS DAYS TO REQUEST THE HEARING. MY OFFICE WILL BE HAPPY TO DO IT FOR YOU. PLEASE CALL ME AT 7401-788-0600 [Top]

THE HORIZONTAL GAZE NYSTAGMUS TEST

The Horizontal Gaze Nystagmus is a test designed to measure the jerking of the eye. There are three ways to measure this "jerking" The first is to check for smooth pursuit. The next check is done to see whether the nystagmus becomes more "distinct" when the eye is moved to a lateral extreme or maximum deviation. The final measure is whether there is an onset of nystagmus before the 45 degrees. By measuring the angle at which the eye begins jerking, an officer can, theoretically, roughly estimate BAC. [Top]

What does all of this mean?

We know when a police officer does not do the tests correctly. Oftentimes, if I am able to catch them, they will look foolish. Most juries can understand that field tests really do not mean all that they are set out to be. Most jurors cannot stand on one leg regardless of whether or not they have been drinking. Field sobriety tests can be handled in court with proper training and questioning. I believe that people who have been drinking will not perform well on these tests, but I also believe that most non-athletic people will not perform well either.

The Horizontal Gaze Nystagmus is used by police and prosecutors as a scientific test. If it is done correctly, it has been shown to have validity. However, road conditions are different than laboratory conditions. An officer with traffic going by, blue lights flashing, and potential for danger does not always do the test as he was taught. Thus, if the test is not done properly, the validity is compromised. [Top]

State Administered Tests of Blood, Breath, and Urine

The police are allowed to ask a driver to submit to a State administered chemical test if the officer has reasonable grounds to believe that the driver is operating a moving vehicle while under the influence of alcohol. In addition, the Legislature has determined that any person who operates a moving vehicle in this state has given consent to have a blood, breath, urine, or test of other bodily substances to determine if he or she is under the influence of alcohol.

Once you are arrested for DUI, an officer should read the implied consent warning. This warning advises you of the consequences of taking a test and gives you the option of refusing a test. In addition, the warning advises you of your right to your own chemical test once you take the State test. Contrary to public opinion, the law does not give people the right to an attorney prior to taking a test. [Top]

Problems With Breath Testing:

The Intoxilyzer 5000 is a machine and is subject to error. For example, if a person gives a breath test of 0.10 grams on their first try, the next test will be valid if it is as low as 0.08 or as high as 0.120 grams. The range is + or - .02 grams or more. That is a huge leeway in order for a test to be valid.

To bring it closer to home: Would you feel comfortable if I told you that ten people were going out on a boat and the law required me to have a life jacket for each of them. However, the law gave me some leeway and told me that it would be o.k. if I had anywhere between 8 and 12 jackets on the boat. Would you feel comfortable getting on that ship?

There are numerous things that can affect a breath test such as proximity to electronics that emit radio waves, like police walkie-talkies. These items should be turned off when in the room where the Intoxilyzer test takes place. The machine if properly working should detect any radio interference.

A person's physical condition, or exposure to certain substances, may also cast doubt onto the accuracy of the Intoxilyzer 5000. Some forms of diabetes, hernias, gastric reflux, or other illnesses may yield inaccurate results on a breath test. In addition, exposure to certain chemicals like acetone may result in an inaccurate breath alcohol test result. Further, some diets like high protein diets may impact a breath test.

Tne. Although our breath machine has a filter that should eliminate interfering substances such as toluene, acetaldehyde, and acetone, from a breath test, routine inspection only includes testing for acetone filtration. Moreover, there is nobody in Rhode Islandwho can repair a broken machine. Rather, the machine must be packed and shipped to the factory for repair. The officer who gave the breath test has generally only been through a sixteen hour course to administer tests. They do not know much more than how to turn the machine on and off. However, following recent court decisions, it is highly likely that the breath test will be admitted into evidence at trial. Therefore, it may be necessary to hire an expert to testify and educate the jury about the deficiencies in the breath test. It may be likely that there were some problems with a breath test. If there were, a good lawyer should be able to attack the result. [Top]

MOST COMMON QUESTIONS OUR CLIENTS HAVE ABOUT THEIR DUI CASES

Can we really win?

Yes. In my opinion a win is obviously a not guilty verdict or an outright dismissal. However, we also look at a win as a DUI charge that is dropped or reduced to another offense. Frequently, either before or during a hearing on a motion to suppress, a prosecutor will appreciate the weakness of the case and reduce the charge, because they understand that a DUI may be difficult to prove. After learning of the facts of your case, we will tell you what we need to do to win and what our chances of success are. [Top]

Can I plead Nolo or No Contest?

A nolo plea for offenses prior to July 1, 1997 could save your driver’s license. However, it is of little use today, because it will not save the license. It may carry some benefits in the event of an auto accident where liability is an issue. [Top]

Will the Prosecutor know my record?

The State has access to your history. In most cases the State will know all about your prior record, although some states (e.g., Florida) do not report on-line. They will also know if it is clean. The prosecutor may obtain a national criminal history which should show prior offenses in other states. We do not present this evidence to the State, but we must know the truth so we can adequately prepare your defense. [Top]

How long does a DUI stay on my record?

In Rhode Island DUI will remain on your record forever. [Top]

I do not live in Rhode Island, so how will this affect me, and will I have to return for court?

Rhode Island can suspend your privilege to drive in this State, but it cannot suspend your license. In addition, it cannot issue any kind of limited permit for a person with an out-of- state license. However, if convicted, your state will most likely find out and issue some sort of suspension. Most likely, you will have to return to Rhode Island for at least one court appearance. [Top]

Will I go to jail for this?

DUI has become a very serious issue, and many judges will give jail time for even a first offense. Most judges will look at a lifetime record. Even though the law only has specific penalties for DUI’s within a five year period, it is not uncommon for a Judge to look outside that window to determine a sentence. [Top]

When can I speak to you?

We are in court on a regular basis. Just call the office for a free initial consultation.   [Top]

WHAT TO DO IF STOPPED BY THE POLICE FOR DUI

What should I do if pulled over and am suspected of a DUI?

If you are over twenty one and have not been convicted of a DUI in the last five years:

1. BE POLITE (The officer is the Judge and owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS

3. UNLESS THERE WAS AN ACCIDENT INVOLVING AN INJURY, SUBMIT TO THE REQUESTED CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A WORK PERMIT).

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED

5. ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH AT A DIFFERENT POLICE DEPARTMENT [Top]

If over twenty one and have been convicted of a DUI in the last five years:

1. BE POLITE (The officer is the Judge and owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS

3. UNLESS YOU HAVE HAD 2 DRINKS OR LESS DO NOT SUBMIT TO THE REQUESTED CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION HOWEVER A 2ND OFFENSES DUI WITHIN 5 YEARS WILL LEAD TO 12 MONTHS WITHOUT A LICENSE ANYWAY).

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED

5. IF YOU TAKE THE TEST ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH AT A DIFFERENT POLICE DEPARTMENT [Top]

If under twenty-one:

1. BE POLITE (The officer is the Judge and owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS,

3. POLITELY REFUSE TO TAKE THE REQUESTED CHEMICAL TEST. (One drink may put you over the legal limit)

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED (Any admission of drinking may lead to a separate charge for underaged possession of alcohol). [Top]

If a commercial driver:

1. BE POLITE (The officer is the Judge and owns the side of the road.)

2. DO NOT SUBMIT TO ANY FIELD SOBRIETY TESTS

3. UNLESS THERE WAS AN ACCIDENT INVOLVING AN INJURY SUBMIT TO THE REQUESTED CHEMICAL TEST (A REFUSAL TO SUBMIT MAY LEAD TO A LICENSE SUSPENSION WITHOUT A WORK PERMIT)

4. NEVER SPECIFY AN AMOUNT OF ALCOHOL THAT YOU HAVE CONSUMED

5. ALWAYS REQUEST AN INDEPENDENT TEST OF BOTH BLOOD AT A HOSPITAL AND BREATH AT A DIFFERENT POLICE DEPARTMENT [Top]