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

"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.
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.

For Instance, a motorist detained pursuant to a traffic stop is not taken into custody for purposes of the Miranda doctrine, and Miranda warnings are not required to be given, where a single police officer asked the motorist a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists, and where only a short period of time elapsed between the stop and his arrest, and at no point during the interval was the motorist informed that his detention would not be temporary; statements made by the motorist prior to his arrest are therefore admissible against him. Berkemer v. McCarty (1984, US) 82 L Ed 2d 317, 104 S Ct 3138.

Officer's questions asking defendant, who was asleep in parked car along roadway, about his identification and whether he had been drinking were asked when defendant was not in custody and would not have reasonably believed that he was under arrest, and since this was traffic investigation, Miranda warnings were not initially necessary, such that defendant's incriminating statements in response to officer's questions were admissible. Bohanan v. State, 72 Ark. App. 422, 38 S.W.3d 902 (2001); West's Key Number Digest, Criminal Law 412.2(2).

In a prosecution for driving a motor vehicle while under the influence of intoxicating liquor, the defendant's statement to a police officer that the breathalyzer machine would "probably show I'm in a coma" was essentially a confession that the defendant was drunk, and was therefore admissible into evidence as a voluntary statement where it was made spontaneously after the defendant had been given the Miranda warnings. Ricks v. State (1992, Miss) 611 So 2d 212.

Defendant's statement to state trooper that he had been driving car was properly admitted in evidence in prosecution for driving while intoxicated since trooper directed defendant to remain next to car while trooper parked his patrol car, and advised defendant that he detected smell of alcohol and intended to administer field sobriety test; such conduct was insufficient to convert questioning from part of routine investigative stop into custodial interrogation. People v. Hampe (1992, 3d Dept) 181 AD2d 238, 585 NYS2d 861, app den 80 NY2d 930, 589 NYS2d 857, 603 NE2d 962.

Police officer's question to motorist detained on suspicion of DWI, "Are you too intoxicated to understand me?" was not interrogation, since officer's purpose was simply to get attention of motorist, who was repeatedly interrupting and failing to cooperate with officer. Morris v. State (1995, Tex App El Paso) 897 SW2d 528.

Even though the police do give the necessary constitutional warnings to a suspect prior to interrogation, the problem still exists whether the suspect understood them and made an intelligent waiver. If the police are indeed correct in contending that the suspect is intoxicated, a very real possibility exists that the suspect did not properly understand his rights or could not intelligently waive them. State decisions on this point are in conflict.
In an RI DUI DWI Drunk Driving or Driving under the influence investigation, Rhode Island law firmly obviates the idea that an attorney is necessary to a suspect’s knowing and voluntary decision to take the breathalyzer! In Dunn v. Petit (RI) 388 A2d 809, the court held that a motorist believed on reasonable grounds to have been driving under the influence of intoxicating liquor does not have the constitutional right to consult with an attorney before deciding whether to submit to a breathalyzer test requested by a police officer under the state's implied consent law.

In addition, defendant knowingly and intelligently waived his Miranda rights despite his contention that he was drunk when interrogated by federal agents following his arrest for drunk driving where agents testified that they gave defendant enough time to recover from his inebriation and that he did not appear drunk when they interviewed him. United States v. Andrews (1994, CA5 Miss) 22 F3d 1328.

Field sobriety tests of recitation of alphabet and counting backwards are not "testimonial" in nature, for purposes of defendant's right to be free from self-incrimination or defendant's Miranda rights; such communications are physical evidence of functioning of defendant's mental and physical faculties, and do not involve express or implied assertion of fact or belief. (Per McCormick, P.J., with one judge concurring in the result.) U.S.C.A. Const.Amend. 5. Gassaway v. State, 957 S.W.2d 48 (Tex. Crim. App. 1997).
In conclusion, Miranda only applies to statements that are testimonial in nature. Much of the evidence obtained pursuant to a DUI investigation is non-testimonial and therefore Miranda does not apply. A RI DUI lawyer is cognizant of the limitations on the right to counsel during the investigation, and ideally it is important to advise clients on how to handle a possible DUI investigation before it happens.