Rhode Island DUI Lawyers

Criminal Defense Lawyer John L. Calcagni, III

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Rhode Island DUI Lawyers

Criminal Defense Lawyer John L. Calcagni, III

Schedule a Consultation

Driving under the influence of liquor or drugs in Rhode Island

It is unlawful for a person to operate a motor vehicle while intoxicated due to the ingestion of alcoholic beverages and/or a controlled substance.  The purpose behind this law is that a motorist must maintain safe control and operation of a motor vehicle at all times. 

If a motorist’s ability to operate a vehicle safely becomes impaired due to the ingestion of an intoxicating substance, the motorist is rendered unfit to drive.  

When it comes to alcohol, the law renders a motorist legally unsafe to drive when the motorist’s blood alcohol content (BAC) is measured to be .08 or greater.   However, a motorist may still be unfit to drive if he or she ingested an intoxicating liquor and the BAC is less than .08.  

When it comes to controlled substances, a motorist may become unfit to drive by ingesting medications for which he or she has a valid prescription, or by ingesting illegal drugs.  Under Rhode Island criminal law, Driving Under the Influence (DUI) of Liquor or Drugs may be found under Rhode Island General Laws, Section 31-27-2.

If you have been arrested and charged with a DUI in Rhode Island, contact DUI lawyer John L. Calcagni, III today to schedule a free consultation.

Legal elements of driving under the Influence of liquor or drugs

Under the law, proof of guilt can be shown by two different theories:

  1. that the defendant’s BAC, as shown by a chemical analysis of a blood, breath or urine sample, was .08% or more or showed the presence of drugs or a controlled substance; or
  2. the defendant was under the influence of intoxicating liquor, drugs, toluene, or any controlled substance, or any combination of these, to a degree that rendered the defendant incapable of safely operating a vehicle

Liquor

In order to be convicted of Driving Under the Influence of Liquor, there must exist strong evidence of the following legal elements:

  1. that defendant was operating a motor vehicle;
  2. he or she was operating the motor vehicle while in the State of Rhode Island; and
  3. the defendant was under the influence of intoxicating liquor at the time he was operating the motor vehicle; or
  4. the defendant was under the influence of intoxicating liquor to a degree that rendered the defendant incapable of safely operating the vehicle

Drugs

In order to be convicted of Driving Under the Influence of Drugs, there must exist strong evidence of the following legal elements:

  1. that defendant was operating a motor vehicle;
  2. he or she was operating the motor vehicle while in the State of Rhode Island; and
  3. the defendant was under the influence of intoxicating drugs or a controlled substance at the time he was operating the motor vehicle; or
  4. the defendant was under the influence of intoxicating drugs or controlled substance to a degree that rendered the defendant incapable of safely operating the vehicle

What evidence may be offered against me in a DUI prosecution?

In a DUI prosecution, there are five categories of potential evidence that may be offered against you:

  1. officer observations of a vehicle’s operation;
  2. officer observations of the motorist after the vehicle is stopped;
  3. statements by the motorist;
  4. performance on field sobriety or roadside agility and coordination tests, if you voluntarily take these tests; and
  5. chemical breath test evidence, if you voluntarily elect to participate in this test.  

The fewer categories of evidence available to the prosecution, the stronger will be your criminal defense.

Officer observations of the vehicle’s operation

This may include speeding, swerving, striking an object such as a parked car, curb or sign, rapid acceleration, or rapid deceleration, failing to use turn signals and breaking the solid line by traveling in the wrong lane. 

These manners of vehicle operation may give rise to a lawful motor vehicle stop by police for issuance of a traffic citation. Police may stop a motor vehicle when they observe a traffic violation or if they have reason to believe that either a crime has been committed by occupant(s) of the vehicle or the vehicle contains evidence of a crime. 

Officer observations of the motorist

These observations may be such things as bloodshot and watery eyes; a detectable odor of an alcoholic beverage emanating from either the motorist or inside the vehicle; slowed response to either answer questions by police or to retrieve items requested by police such license and registration; slurred speech. 

Once a motorist is asked by police to exit the vehicle, the officer may observe the motorist to be unsteady on his or her feet; swaying stumbling; falling; or holding on to the vehicle or other object for balance.

Statements by the motorist

By nature, people become anxious and even fearful when pulled over by police. It is always in the best interest of a motorist to remain silent and avoid making any incriminating statements.  Any statements made to police can and will be used against you. 

In the context of a motor vehicle stop and possible DUI investigation, police may ask questions such as your destination, where you are coming from, if you consumed any alcohol prior to driving, and if so, what and in what quantity.  You are not obligated to answer these questions and should avoid doing so for your own protection. 

If you elect to make any statement(s), such as the fact that you were recently at a bar, club, restaurant, party, etc., or that you only had one or two glasses of wine, these statements will be used by the officer to build a DUI case against you.  It is best that you remain polite and respectful but refrain from saying anything or making any statements to police that can later be used to as evidence to in a DUI prosecution.

What is “BAC” and how is it determined?

In any criminal prosecution for a DUI, evidence as to the amount of liquor or drugs (or any combination of these) in the defendant’s blood is usually shown by a breath test, blood test, or urine test. However, the law provides that for a defendant’s BAC to be used against him in a criminal proceeding, certain conditions must be satisfied. These conditions are as follows:  

  1. The defendant consented to the take the test used to analyze his BAC. If the defendant refused to submit to the test, evidence of the refusal is inadmissible in the proceedings unless he or she elects to testify.
  2. A true copy of test result must be mailed to the defendant within 72 hours of the test administration if the test was a chemical breath test.
  3. If the test was of blood or urine, a true copy of the test result must be mailed to him or her within 30 days of the test administration.
  4. The test method and equipment used must be approved by the Director of the Department of Health for the State of Rhode Island and the test must be performed by an authorized individual.
  5. If the test was a chemical breath test, the equipment used must have been tested for accuracy within 30 days prior to the test administration by a qualified person and certified by the Department of Health within 365 days of the test.
  6. The defendant must be afforded the opportunity to have an additional chemical test performed. The arresting officer must inform the defendant this right and afford him or her a reasonable opportunity to exercise it and a notation that such opportunity was afforded must be made in official police records. Refusal to permit an independent test shall render incompetent and inadmissible in evidence the original test result.

What are field sobriety tests?

Almost all DUI investigations involve police asking a motorist to step from his or her vehicle. This enables the officer to make further observations of the motorist that he or she will associate with physical impairment.  In most cases, the purpose of the exit order is also to have the motorist participate in a series field sobriety tests. 

These tests are designed to determine if a motorist is impaired from an intoxicating substance by testing your physical agility and coordination.  A person is not under any legal duty or obligation to participate in field sobriety tests.  However, most motorists are unaware of this fact.  Police are not obligated and often do not advise a motorist that field sobriety tests are not mandatory.  This is the reason why many motorists submit to the tests.

It is impossible to pass a field sobriety test, even if you have not consumed any alcohol whatsoever.   These impassable tests are designed for use by law enforcement to collect evidence for DUI criminal prosecutions.   The tests come with standardized instructions and performance standards. 

When administered, police are required to observe the test performance by the motorist for signs or clues of impairment.   No one passes the tests, so if you want to maximize your chance of an DUI conviction, do not participate in the tests.  You may politely and respectfully decline to do so without any penalty or punishment.  This is your legal right.

There are three standardized field sobriety tests which were developed by the National Highway Traffic Safety Administration that all Rhode Island law enforcement officers are trained on and taught to administer during every DUI investigation.  The three standardized field sobriety rests, The Horizontal Gaze Nystagmus test, 9-Step Walk and Turn Test and Standing on One Leg Test, are discussed below.

Horizontal gaze nystagmus test (HGN)

“Nystagmus” refers to an involuntary, jerking movement of the persons pupil which occurs because of alcohol consumption.  In other words, the more alcohol a person drinks, the more jerking that will be present in the eyes.  

For the HGN test, the officer will first ask the motorist stand still with their feet together and with their hands down by their side. The officer then takes a pen or other object and asks the person to follow the tip of it with their eyes while keeping their head still.  Depending on how much jerking there is in the persons eyes, the more jerking the higher the persons intoxication, the officer is able to use this test to build probable cause to arrest the person.  

9-Step walk and turn test

The 9-Step Walk and Turn test is used to evaluate a motorist’s cognitive and physical abilities to operate a motor vehicle. The officer generally will ask the motorist to stand at the base of an actual white line or imaginary line on the roadside.  The person then will start, with their feet one foot in front of the other (i.e. heel-to-toe) on the line. 

Once the officer says the person may begin the test, the person must keep their arms remaining at their side, and then walk 9 steps while counting aloud and continuing the “heal-to-toe” movement.  After 9 steps, the person will turn and take another 9 steps back in the same manner.

During the test, there are several clues the officer looks for an indicative of impairment.  These include loss of balance while being instructed on the test; starting the test before told to do so; miscounting steps aloud; failing to touch heel to toe; stepping off of the “line”; using arms to keep balance; losing balance during the test or during the turn; turning improperly; and taking more or less than 9 steps.

The standards laid out by NHTSA state that if a person demonstrates two of these clues during the test, there is a 68% probability the person impaired and has a Blood Alcohol Content (BAC) of .08 or higher, which exceeds the legal limit.

Standing on one leg test

The Standing on One Leg test also is used to evaluate a person’s cognitive and physical abilities. The officer asks the motorist to stand with their feet together, remaining perfectly still with their hands down by their side. The motorist then will be required to stand on one foot, at least six inches off the ground, while counting aloud until the motorist is told to stop. 

The officer looks for several clues that indicate the person is impaired. These clues include swaying while trying to remain balanced; using arms to stay balanced; hopping to maintain balance; and putting the foot down before completion of the test or being told to do so.  The standards state that if an officer observes two or more of the above clues, there is a 65% probability that the person is impaired and has a BAC of .08 or higher, which exceeds the legal limit.

Non-standardized tests

Aside from the three standardized field sobriety tests, there are non-standardized field sobriety tests that police often use during the course of DUI investigation.  These tests include asking a motorist to touching his nose with a finger; reciting the alphabet; counting down aloud in reverse; or picking up a coin off the ground.   Like standardized field sobriety tests, a motorist has no obligation to participate.  He or she may politely and respectfully decline without any penalty or legal consequence.

What is a preliminary breath test “PBT”?

A Preliminary Breath Test (PBT) is performed with a portable breathalyzer device that many police officers carry with them on the road in order to measure motorists’ blood alcohol content (BAC) in the context of DUI investigations.  A motorist may decline to participate in any chemical breath test, whether preliminarily on the roadside or officially at the police station.  

In Rhode Island, when a law enforcement officer has reason to believe that a person is driving or in actual physical control of any motor vehicle in this state while under the influence of alcohol, the law enforcement officer may require the person to submit to a preliminary breath test. If a person refuses, upon a lawful request of a law enforcement officer, to submit to a test, that person shall be guilty of a civil infraction and shall be subject a fine of $85.00.

Potential punishment if convicted of driving under the influence (DUI) of liquor or drugs in Rhode Island

Rhode Island criminal law provides that a first and second offense DUI is a misdemeanor. A third or subsequent conviction is a felony and comes with severe consequences.  In addition to the penalties provided below, every defendant convicted of a DUI must pay a $500 highway assessment and a $86 DUI assessment fee. In addition, the defendant may have to attend course on driving while under in the influence and is responsible for paying the tuition associated with this course. 

If the defendant is ordered to attend alcohol and/or drug treatment the cost associated therewith is the defendant’s responsibility. Furthermore, failure to attend the required classes may result in the defendant being sentenced to imprisonment for not more than 1 year. Under Rhode Island criminal law, the penalties for Driving Under the Influence of Liquor or Drugs may be found at Rhode Island General Laws, Section 31-27-2.

Penalties for the first offense DUI in Rhode Island

Under Rhode Island criminal law, the penalties for a first DUI conviction in Rhode Island may be found at Rhode Island General Laws, Section 31-27-2(d)(1)(i)-(iii).  These penalties vary based upon the recorded BAC of the charged motorist.

For a BAC of .08% but less than .1% or blood presence of any drug

The defendant shall be subject to a fine of not less than $100, nor more than $300; shall be required to perform 10 to 60 hours of public community restitution, and/or be imprisoned for up to 1 year.

The defendant may also be required to attend a special course on driving while intoxicated or under the influence of a controlled substance.

His or her driver’s license will be suspended for 30 days up to 180 days and the defendant may also be prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.

For a BAC of .1% but less than .15% or BAC is unknown

The defendant shall be subject to a fine of not less than $100, nor more than $400, and shall be required to perform 10 to 60 hours of public community restitution and/or be imprisoned for up to one year.

In addition, he or she will be required to attend a special course on driving while intoxicated or under the influence of a controlled substance and/or alcoholic or drug treatment.

His or her license will be suspended for 3 to 12 months and the defendant may also be prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.

For a first-offense, with a BAC of .15% or above or under the influence of a drug

The defendant shall be subject to a fine of $500 and shall be required to perform 20 to 60 hours of public community restitution and/or be imprisoned for up to 1 year.

In addition, he or she will be required to attend a special course on driving while intoxicated or under the influence of a controlled substance and/or alcoholic or drug treatment.

His or her license will be suspended for 3 to 18 months and the defendant will also be prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.

Penalties for a second offense DUI in Rhode Island

When a defendant is convicted of a second offense DUI in Rhode Island within a 5-year period, he or she faces higher penalties. Under Rhode Island Criminal law, these penalties may be found under Rhode Island General Laws, Section 31-27-2(d)(2)(i)-(ii) and also vary based upon the recorded BAC of the motorist.

For a BAC of .08% but less than .15% or BAC is unknown or has the presence of drugs in their blood

The defendant shall be subject to a mandatory fine of $400, his or her driver’s license will be suspended for 1 to 2 years and the defendant will be sentenced to serve not less than 10 days nor more than 1 year in jail.

In addition, he or she will be required to attend alcohol or drug treatment and will be prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.

For a BAC of .15% or above, by weight as shown by a chemical analysis of a blood, breath, or urine sample, or who is under the influence of a drug

The defendant will be subject to mandatory imprisonment of not less than 6 months, nor more than 1 year and a mandatory fine of not less than $1,000. His or her license will be suspended for a period of 2 years from the date of completion of the sentence imposed.  

In addition, he or she will be required to attend alcohol or drug treatment and will be prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.

Penalties for a third offense DUI in Rhode Island

When a defendant is convicted of a third or subsequent offense DUI in Rhode Island within a 5-year period, it is a felony and he or she will face severe consequences. Under Rhode Island Criminal law, these penalties may be found under Rhode Island General Laws, Section 31-27-2(d)(3)(i)-(iii) and vary according to the measured BAC of the motorist arrested and charged with the offense.

For a BAC of .08% but less than .15% or BAC is unknown or has the presence of drugs in their blood

The defendant shall be subject to a mandatory fine of $400, his or her driver’s license will be suspended for 2 to 3 years and the defendant will be sentenced to serve not less than 1 year nor more than 3 years in jail.

In addition, he or she will be required to attend alcohol or drug treatment and will be prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.

For a BAC of .15% or above, by weight as shown by a chemical analysis of a blood, breath, or urine sample, or who is under the influence of a drug

The defendant will be subject to mandatory imprisonment of not less than 3 years nor more than 5 years and a mandatory fine of not less than $1,000 nor more than $5,000.

His or her license will be suspended for a period of 3 years from the date of completion of the sentence imposed.  

In addition, he or she will be required to attend alcohol or drug treatment and will be prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.

In addition to the above penalties, every defendant convicted of a third or subsequent violation within a 5-year period shall be subject, in the discretion of the sentencing judge, to having his vehicle seized and sold by the State of Rhode Island.

Penalty for a violating prior penalties imposed for a DUI conviction

If a defendant drives or otherwise operates a vehicle in Rhode Island while under the influence of alcohol and/or drugs and while his or her license to operate is suspended, revoked, or canceled for previously operating under the influence of alcohol and/or drugs, he or she shall be guilty of a felony.

The defendant will be sentenced to not more than 3 years in jail, a fine of not more than $3,000, and be required to attend alcohol and/or drug treatment.  

These penalties are in addition to any other penalties imposed for the subsequent offense DUI.  Under Rhode Island criminal law, these provisions may be found under Rhode Island General Laws, Section 31-27-2(d)(4).

Penalties imposed on a juvenile in Rhode Island

If the defendant is under the age 18 and incurs his or her first offense DUI, he or she must perform 10 to 60 hours of public community service.  Also, the convicted juvenile’s driving license will be suspended for a period ranging from 6 to 18 months.

He or she will also be required to attend a special course on driving while intoxicated or under the influence of a controlled substance and alcohol or drug education and/or treatment.  The juvenile may also be required to pay a highway assessment fine of no more than $500.

If the defendant is under the age 18 and is convicted of a second or subsequent DUI offense, he or she will be subject to a mandatory suspension of his or her driving license until age 21 and may, in the discretion of the sentencing judge, also be sentenced to the Rhode Island Training School for a period of not more than 1 year and/or a fine of not more than $500.  

Under Rhode Island Criminal law, these penalties may be found under Rhode Island General Laws, Section 31-27-2(d)(7)(i)-(ii).

Penalties imposed for DUI with a child in the vehicle in Rhode Island

If a defendant over age 18 is convicted of operating a motor vehicle while under the influence of alcohol and/or drugs in Rhode Island and at the time of that operation, there was a child under age 13 present in the vehicle, the defendant will face harsh penalties.

The defendant will immediately have his or her license suspended while the criminal proceedings are pending.  For a first offense, the defendant will be guilty of a misdemeanor and may be sentenced to a term of imprisonment of not more than 1 year and/or a fine not to exceed $1,000.

For a second or subsequent offense, the defendant will be guilty of a felony and may be sentenced to a term of imprisonment of not more than 5 years and/or a fine not to exceed $5,000.

The defendant will have his or her license suspended for up to 2 years and be required to attend a special course on driving while intoxicated or under the influence of a controlled substance, and alcohol or drug education and/or treatment. 

He or she may also be required to pay a highway assessment fee of no more than $500.  Under Rhode Island Criminal law, these penalties may be found under Rhode Island General Laws, Section 31-27-2(d)(5)(ii).

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Case Results:


Charges: Driving Under the Influence of Alcohol – Dismissed

A Woonsocket Police Officer on patrol noticed a vehicle driving erratically. The officer noticed the vehicle stop and accelerate rapidly, veer into the middle of the road, and almost strike a parked car. Based on these observations, the officer conducted a traffic stop. The female operator and lone occupant appeared to be intoxicated. The officer observed her to have bloodshot eyes, slurred speech and delayed reaction. When questioned, the woman admitted to drinking alcoholic beverages earlier in the evening and was driving to her home in Massachusetts. The officer administered to her a series of standardized field sobriety tests, all of which she allegedly failed. When asked to submit to a chemical breath test, the woman refused. Based on this chain of events, police arrested the woman and charged her criminally with driving under the influence of alcohol (DUI) in Rhode Island District Court and civilly with refusing to submit to a chemical breath test in the Rhode Island Traffic Tribunal (RITT). The woman retained Rhode Island Criminal Defense Lawyer, John L. Calcagni III, to defend her in these matters. After attending several pretrial conferences for the woman, Attorney Calcagni successfully negotiated for dismissal of the pending criminal DUI charge in District Court in exchange for the woman’s acceptance of responsibility to the civil refusal charge in RITT. The criminal matter has since been sealed from the woman’s record.

If you have been charged with DUI and need expert legal representation, contact the Rhode Island Motor Vehicle Defense Lawyers at the Law Office of John L. Calcagni III by email or call today at (401) 351-5100 to schedule a free consultation.

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