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

"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).
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).

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 postarrest 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.

Videotape evidence in the context of criminal cases is becoming more abundant.  A criminal defense attorney should always seek such evidence pursuant to discovery procedures.