John Coddington House, 2 Marlborough St., Newport, RI 02840-2516

"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:
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:

Deaf motorist's arrest for driving under the influence (DUI) and his subsequent stationhouse detention was not covered by the ADA or the Rehabilitation Act (RA); motorist's arrest was due to his erratic and suspicious driving, not his disability, and following his arrest, police merely communicated breath test consent form to motorist, who foreclosed further questioning by requesting an attorney through his driver's rights card. Rehabilitation Act of 1973, § 504, 29 U.S.C.A. § 794; Americans with Disabilities Act of 1990, § 201, 42 U.S.C.A. § 12131. Bircoll v. Miami-Dade County, 410 F. Supp. 2d 1280 (S.D. Fla. 2006).

Where a defendant in a drunk driving and vehicle manslaughter prosecution was taken to the hospital after the accident without being arrested and police took a blood sample from him after he signed a consent form without realizing what he was doing, the court in People v. Superior Court of Kern County, 6 Cal 3d 757, 100 Cal Rptr 281, 493 P2d 1145, held that the consent was not voluntary and that seizure of the blood sample violated the defendant's right to be secure against unreasonable searches and seizures where it was not done pursuant to a search warrant or incident to an arrest. The court pointed out that in the decision in Schmerber v. California, 384 US 757, 16 L Ed 2d 908, 86 S Ct 1826, the Supreme Court unequivocally stated that even a lawful arrest would not in itself justify a seizure of blood without a warrant, unless there was in addition a "clear indication" that a blood-alcohol test will reveal intoxication.

All statutes defining the offense of driving while intoxicated require that the defendant exert some type of control over the vehicle. If a question exists concerning such control, the defense attorney should certainly investigate the matter. Also, the place where the vehicle was observed in operation is very important. Many statutes prohibit the operation of vehicles by an intoxicated driver only on certain types of public property. If any reasonable question exists as to the public character of the property, the defense attorney should consider the use of surveyors and title attorneys, if necessary, either to prove the private character of the area where the vehicle was operated, or to create reasonable doubts as to its public nature.

See also Proof that Driver Was "Operating" Vehicle While Intoxicated, 61 Am. Jur. Proof of Facts 3d 115.

Cases:

Driving while intoxicated conviction was reversed where finding that defendant was in "actual physical control" of vehicle could not be sustained on evidence that unconscious defendant was hanging partially from window of driver's side of truck with engine off and appearance of vomit on mouth and front of shirt while emitting strong odor of alcoholic beverage. State v. Zavala (1983) 136 Ariz 356, 666 P2d 456.

The evidence supported findings that defendant, a minor, drove under the influence of alcohol and caused injury (Veh. Code, § 23153, subd. (a)) and inflicted great bodily injury, even though at the time of the accident, she was not sitting in the driver's seat, but was operating the steering wheel while another person operated the brakes and accelerator. Veh. Code, § 305, provides that a driver is a person "who drives or is in actual physical control of a vehicle." Defendant's act of steering the car, although she was not operating the accelerator or brakes, rendered her a driver within the meaning of Veh. Code, §§ 305, 23153. Indeed, it was defendant's decision to negotiate a left turn that placed the vehicle in the path of an oncoming motorcycle. Thus, she was quite literally in control of the vehicle at the time the motorcycle's right of way was violated. Re Queen T. (1993, 4th Dist) 14 Cal App 4th 1143, 17 Cal Rptr 2d 922, 93 CDOS 2500, 93 Daily Journal DAR 4183.

Fact that motorist's vehicle was parked on the right shoulder of interstate with left turn signal flashing did not aid in establishing a substantial basis in fact to find that motorist was "operating" vehicle within meaning of statute providing that any person who "operates" motor vehicle shall be deemed to have given such person's consent to chemical analysis of such person's blood, breath or urine and, if results of such test indicate that person has elevated blood alcohol content, police officer shall immediately revoke and take possession of motorist's driver's license; turn signal was not capable of setting in motion the motive power of the vehicle. C.G.S.A. § 14-227b. Sengchanthong v. Commissioner of Motor Vehicles, 92 Conn. App. 365, 885 A.2d 218 (2005), certification granted in part, 277 Conn. 912, 894 A.2d 992 (2006).

Even if motorist, fully reclined and sleeping in driver's seat, was in a position to control movements of vehicle, motorist was not doing any act, manipulating any machinery or making use of any mechanical or electrical agency that alone or in sequence would set in motion the motive power of the vehicle, and thus, motorist was not "operating" vehicle within meaning of statute providing that any person who "operates" motor vehicle shall be deemed to have given such person's consent to chemical analysis of such person's blood, breath or urine and, if results of such test indicate that person has elevated blood alcohol content, police officer shall immediately revoke and take possession of motorist's driver's license. C.G.S.A. § 14-227b. Sengchanthong v. Commissioner of Motor Vehicles, 92 Conn. App. 365, 885 A.2d 218 (2005), certification granted in part, 277 Conn. 912, 894 A.2d 992 (2006).

The corpus delicti of DUI manslaughter was sufficiently established by evidence independent of truck driver's admission, where the investigating officer found driver standing next to his tractor-trailer which was illegally blocking the highway, a motorcycle was in a nearby lane, the dead motorcyclist was lying near the truck, driver's speech was slurred, his eyes were bloodshot, he smelled strongly of alcohol, and driver's supervisor asked if driver could drive his vehicle away and continue his run, but driver contended that the corpus delicti was established solely by his admission that he had been drinking heavily all night. Burks v. State (1993, Fla) 613 So 2d 441, 18 FLW S 71.

Evidence was sufficient to support convictions for driving under the influence (DUI), being habitual violator, and failure to maintain lane; truck landed in ditch, witness stated that two men had gotten out of truck and were walking down street holding each other up, officer found them, both men were intoxicated and had strong odor of alcohol, they told officer that they had been involved in accident, defendant had cuts and scratches consistent with injuries that would have resulted from being driver, defendant had red knot on his forehead that matched break in windshield on driver's side, in video while two were alone in officer's cruiser, defendant told passenger that he should say that he was driving because defendant would not spend another night in jail, and defendant's blood alcohol level registered.210 approximately two hours after accident. Becker v. State, 280 Ga. App. 97, 633 S.E.2d 436 (2006).

Evidence did not show that vehicle occupied by defendant was operable, and absent such evidence, defendant could not be convicted of being in actual physical control of a vehicle while under the influence of alcohol; defendant was seated in driver's seat of his vehicle with motor running, but there was no direct evidence that vehicle was capable of moving, nor any circumstantial evidence from which operability could be inferred, defendant showed that his vehicle was mechanically disabled and could not be made operable without significant effort and cost, and defendant's car was not parked on an incline, nor being coasted, towed, or pushed. I.C. § 18-8004(1). State v. Adams, 142 Idaho 305, 127 P.3d 208 (Ct. App. 2005).

Driver was properly convicted of operating vehicle while intoxicated where police officer found defendant behind steering wheel of car stuck in snowbank with lights on and engine running. Garland v. State (1983, Ind App) 452 NE2d 1021.

Sufficient evidence supported conclusion that defendant was operator of vehicle, as necessary to support conviction for operating a motor vehicle while under the influence of intoxicating liquor, second offense; defendant, upon returning to vehicle from woods, retrieved her pocketbook from vehicle, vehicle's ignition was on, there was no other person in the vicinity, defendant was headed to vehicle when she came out of the woods, which was a distance of less than ten feet, one could fairly infer that vehicle was brought to a halt by running off road and going over some obstacle that punctured the two right tires, defendant was, manifestly, not in any condition to drive safely or competently, and her behavior was entirely consistent with her having been the operator. M.G.L.A. c. 90, § 24(1)(a)(1). Com. v. Congdon, 68 Mass. App. Ct. 782, 864 N.E.2d 1227 (2007).

Circumstantial evidence may be used to prove the elements of driving while intoxicated (DWI), but in those cases in which the accused's engine was not running at the time in question, the state must present significant additional evidence of driving and the connection of driving in an intoxicated state. V.A.M.S. §§ 577.001(2), 577.010. State v. Chambers, 207 S.W.3d 194 (Mo. Ct. App. S.D. 2006), reh'g and/or transfer denied, (Nov. 13, 2006) and transfer denied, (Dec. 19, 2006).

Trial court erred in dismissing charge of driving under influence of alcohol against tractor driver who was mowing weeds at side of public highway while intoxicated, since state statutory definitions of "vehicle" and "motor vehicle" amply supported state's contention that tractor was subject to drunk driving laws. State v. Richardson (1992, App) 113 NM 740, 832 P2d 801, cert den (NM) 831 P2d 989.

Drunk-driving statute that was applicable to public roads and such places as parking lots that are open to public did not apply to driver who was found passed out in vehicle with motor turned off in private driveway. State v. Haws (1994, Okla Crim) 869 P2d 849.

Defendant could be found to have been in physical control of automobile notwithstanding fact automobile had flat tire. State v. Farmer (1984, Tenn Crim) 675 SW2d 212.

In Rhode Island, police often times arrive at the scene of an accident or other DWI, DUI scene after the driver is already outside of the vehicle. In these circumstances, proving “operation” may be difficult for the prosecution.