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"Breathalyzer Elements for Admissibility"

A Rhode Island DUI Case will often times include evidence of breathalyzer or breath test results. Defense counsel should inform himself of the foundation that the prosecution must lay in order to qualify the particular intoxication test. In the absence of an adequate foundation, defense counsel should object to admission of results of the test. Although all states do not require proof of the same matters, items from the following list could reasonably be required by any court as a predicate, and defense counsel should be prepared to object to admission of the test results if any applicable items are not established by the prosecution:

1. That the subject was legally arrested for driving while intoxicated prior to the demand for the test;

2. That the operator of the device was properly trained and licensed;

3. That the operator and the device were under adequate supervision by an expert;

4. That the chemicals used were compounded properly;

5. That the test was administered in accordance with the test methods directed by the state agency that supervises intoxication test results.

6. That nothing alcoholic was in the subject's mouth for 15 to 30 minutes before the test;

7. That the person interpreting the results of the test was qualified to do so; and

8. That the reading of blood-alcohol content showed a violation of the state statute creating a presumption of intoxication.

Attorney Hagan honored in "Newport this Week"!

Check out the most recent issue of “Newport this Week” newspaper, where Attorney Kevin Hagan is honored in the “Men Who Make A Difference” section. See below for the full text accompanying this distinction:

“After a year as a Rhode Island Superior Court Law Clerk and six years as Special Assistant Attorney General in Rhode Island, Kevin Hagan joined the firm of Houlihan, Managhan & Kyle. From 2002-2008, Kevin worked as a prosecutor for the Attorney General’s Office where his work included litigating dozens of domestic violence felony cases and homicides. Kevin has also served as part of the Providence Prostitution Task Force. Attorney Hagan now practices a diverse slate of litigation: Family Court, Criminal Defense Law and Civil Litigation. Kevin is a former member of the Roger Williams University Alumni Board, and he serves as an adjunct faculty member at the Community College of Rhode Island. A native of Worcester, Massachusetts, his family placed a high priority on helping people - a tradition Kevin follows in his role as a lawyer, husband and new father. Kevin lives with his wife Domenica and his son, Thomas, in Newport. Attorney Hagan is a member of the RI and Massachusetts State Bar Associations and the Rhode Island Federal District. Because of his commitment to justice, Kevin Hagan is a Man Who Makes A Difference!”

"In a RI DUI case, the attorney of record should have an in depth knowledge of the constitutional requisites for the admissibility of evidence."

In a Rhode Island DUI, DWI, or Driving Under the Influence criminal defense, the attorney of record should have an in depth knowledge of the constitutional requisites for the admissibility of evidence. All possible violations of the defendant's constitutional rights should be investigated. These would include (1) whether the police had probable cause to stop the defendant, (2) whether a legal arrest was made, (3) whether constitutional and statutory warnings were given, (4) whether probable cause to request a breath-alcohol or other scientific test existed, (5) whether a legal search and seizure occurred (6) whether the defendant's right to counsel was violated, and (7) whether a confession was legally obtained. In a Rhode Island Drunk Driving, DUI arrest or DWI prosecution, a criminal defense attorney should also be keenly aware that “operation” is an important element for the prosecution to prove. In other words, the prosecutor in Rhode Island must prove beyond a reasonable doubt that the DWI, DUI suspect actually was operating the vehicle while under the influence. Some of these issues follow: Read More...

"A first offense of driving while intoxicated can carry more than the six months' jail penalty."

With respect to a Rhode Island DWI, Rhode Island DUI or Rhode Island Drunk Driving or Driving under the Influence case, a first offense of driving while intoxicated can carry more than the six months' jail penalty measure set by the United States Supreme Court in the Miranda case as the point from which it may be determined that "substantial" rights of a suspect are involved which would require the giving of constitutional warnings prior to interrogation. Consequently, the police ordinarily do give constitutional and statutory warnings regarding the rights of a suspect when they make an arrest for driving while intoxicated.

In jurisdictions where previous driving-while-intoxicated convictions enhance the penalty, the arresting officer normally does not know whether the conduct observed in the instant case constitutes a misdemeanor or felony violation, and will not know until the suspect's record has been checked. Consequently, it would seem that good police procedure in these jurisdictions should entail the giving of constitutional warnings as soon as an arrest is made in any driving-while-intoxicated case. In an RI DUI, DWI, or driving under the influence prosecution, the police will read the suspect their “Rights for use at scene, which is essentially the equivalent of “Miranda” Rights.

"In Rhode Island, Drunk Driving, DUI, DWI, Sobriety Checkpoints are unconstitutional."

In Rhode Island, Drunk Driving, DUI, DWI, Sobriety Checkpoints are unconstitutional; however in other states across the country, and pursuant to Federal Law, these drunk driving reduction tools are constitutionally permissible. It will not be long before our Rhode Island Supreme Court revisits this issue in a manner more analogous with the majority of U.S. jurisdictions. The following examples illuminate the issues surrounding Rhode Island DUI, DWI, and Drunk Driving checkpoints. Read More...

"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."

With respect to a Rhode Island DUI, DWI, driving under the influence, or drunk driving prosecution, a majority of arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect's conduct by the arresting officer. This raises the constitutional issue, in nearly every case, of whether probable cause existed for the arrest. If probable cause to arrest did not exist when the police initially stopped the suspect, an illegal arrest was made and all evidence gained after the arrest would be inadmissible. While probable cause to arrest is rather apparent when a suspect was driving recklessly and a strong smell of alcohol on his breath was evident to the officer or the suspect got out of the automobile with a bottle of liquor in his hand, probable cause is not so apparent where an individual is stopped for a routine driver's license check or similar reason, and the officers smell alcoholic odors but do not detect further evidence of drunkenness. State courts divide on the question of probable cause to make an arrest under the latter fact situation. A Rhode Island criminal defense lawyer will generally analyze probable cause before they review other issues in the DUI or DWI case.

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:

"In a Rhode Island Drunk Driving, DWI, DUI prosecution, a criminal defense attorney should always attempt to prove the incompetent administration of field sobriety tests."

In a Rhode Island Drunk Driving, DWI, DUI prosecution, a criminal defense attorney should always attempt to prove the incompetent administration of field sobriety tests.  Some of the following cases provide examples of this pursuit. 

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).

Brand New HM&K Law Site Launched

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Be sure to check out the brand new ! It’s loaded with great new features, resources, and helpful content related to all of his practice areas. And don’t forget to check back in regularly, as new content will be continually added to make this site the definitive place to get help with your legal issue.