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I am a criminal defense lawyer practicing in Rhode Island.  I handle all types of criminal cases, including, DUI, domestic violence cases, drug case, sex cases just to name a view. 

Sunday, May 22, 2011

Challenging the Breath Test in a DUI/ Drunk Driving Case

   In Rhode Island, a breath test is most often the means of determining a driver's blood alcohol concentration (BAC) in a DUI/Drunk Driving case. Under Rhode Island law, a driver who fails a breathalyzer test by having a reading of .08% or greater will almost certainly be charged with drunk driving.  As mentioned in previous blogs and my web site at www.criminaldefenselawyerri.com., there are many ways to get DUI breathalyzer results suppressed such as by showing that the stop of the vehicle by the police was illegal, showing that the standardized field sobriety tests were administered incorrectly, and by showing that the breath test was administered improperly, to name a few.  Recently, the reliability of the breath test itself has been brought into question.
      In the City of Philadelphia, there has been a recent discovery that the city's police department was using improperly calibrated breathalyzer machines in their prosecution of DUI cases.
Over 2,126 DUI cases were affected by faulty results over the course of just about one year. Around 1,400 of the 2,126 DUI cases resulted with a guilty verdict or plea to a DUI charge. Many of these cases may have to be dismissed or overturned because of the improperly calibrated machines. The results from these botched breath tests should have a profound effect on DUI law in Rhode Island.  Improperly calibrated breathalyzer machines in Rhode Island can also lead to many invalid DUI convictions.  Too many times lawyers in Rhode Island do not do the proper research to make sure that the breathalyzer machines are calibrated correctly and are in working order.  Defendants and their attorneys need to challenge breathalyzer machines more consistently.
      One issue that has arisen in Rhode Island but that has not been thoroughly litigated is the way the breathalyzer machines are calibrated in the state.  There is much debate on the Intoxilyzer 5000, the breathalyzer machines used in Rhode Island.  Studies have shown that breath tests may vary at least 15% from actual blood alcohol concentration. Approximately 23% of individuals tested by these breathalyzer machines will have a higher and inaccurate BAC reading.
    Breath machines are calibrated by checking and adjusting the internal settings by comparing and adjusting its test results to a known alcohol standard. This is done by a wet bath solution that utilizes an alcohol/water standard in a precise specialized alcohol concentration.  The Department of Health puts the solution into the machine then adjusts the breathalyzer machines to readings to the solution.  This may work fine if the solution is correct.  Recently a member of the Rhode Island Department of Health has testified that there have been no recent tests done by the State to check to see if the solution put into the machine is accurate. The Department of Health is relying solely on the company it buys the solution from and does not preform any tests themselves.  If the solution is off it leads to botched results like those in City of Philadelphia which could have a profound effect on DUIs in Rhode Island.
     If you have been arrested for DUI/drunk driving in Rhode Island you need to call a DUI defense lawyer and make sure he has checked to see if the breathalyzer machine used on you has been properly calibrated. The next big issue in Rhode Island law may be the fact the State does not perform independent tests to make sure the wet bath solution is accurate. Remember without the proper knowledge of DUI law, it will be very difficult to supress the DUI readings and win your DUI case. Hire a lawyer that has the experience and know how to insure you the greatest chance getting your DUI dismissed.
   For more DUI information read my previous blogs and my web site at www.criminaldefenselawyerri.com..

Sunday, May 8, 2011

If Pulled over for DUI Should You Take The Breathalyzer Test?

As a DUI defense lawyer, one of the most common questions I receive is "If I get pulled over for DUI should I refuse the breathalyzer test?". The common thought is that if you are stopped for a DUI, do not take the breathalyzer test and the State will have a much more difficult job in convicting you.  But this is not necessarily the way to go. There are many important factors that you have to take into consideration before making the choice of whether to take the breathalyzer test.  It all depends on numerous factors such on how intoxicated a person is, can you afford a loss of license, do you have prior DUI convictions, how old are your prior DUI convictions, and will a criminal conviction affect your job or school.  To start our analysis lets first look at the penalties for refusal and DUI.

Penalties for First Time DUI Offender with no Breath Test or BAC between .10-.15%

Fined $100-$400
Suspended license for 3 Months to 1 Year
Community Service for 10-60 hours
Highway Safety Assessment ($500 fee)
DUI School and/or an alcohol treatment program
Criminal Conviction
Up to one year in jail(No Mandatory Jail)
SR-22 Insurance 3 Years

Rhode Island Breath Test Refusal Penalties For First Offense Breathalyzer Refusals

Fine $200-$500
Rhode Island Department of Health Fee $200
Suspended license for 6 Months to 1 Year
Community Service for 10-60 hours
Highway Safety Assessment ($500 fee)
DUI School and/or an alcohol treatment program
Civil Violation
SR-22 Insurance 3 Years

As you can see the penalties for both are very similar and the fine and assessments are virtually the same.  Furthermore, if convicted of either charge you will have to do community service for 10-60 hours, DUI School and/or an alcohol treatment program, as well as have to carry SR-22 Insurance for 3 Years.  The main difference between the two is that a DUI is a criminal conviction and a refusal is a civil penalty.  The other big difference is in the license suspension.  If you refuse to take a blood test or a Breathalyzer test and are convicted, your driver's license will be suspended automatically for at least six months. However, if you take the breath test and fail, the minimum suspension is only three months, assuming it is your first offense.  The problem arises in the standard of proof in the two cases. A refusal case is very difficult to win since the State needs only to prove that the arresting officer had reasonable suspicion to ask you to take a breath test. On the other hand, a DUI is a much more difficult case for the State to prove.  A defendant in a DUI case is afforded all the rights granted under our Constitution. The defendant enjoys the presumption of innocence, as well as the criminal standard of proof beyond a reasonable doubt.  The problem is if you fail a breath test you are indeed giving the State more evidence to prove the DUI.

So should you take the test?

The short answer is sometimes.  I believe that a first time offender who can't afford to lose his license may want to risk taking the breath test.  The reason for this are the following: first and foremost you may pass, and there will be no charges; second, there are many cases in which a defendant fails the breath test, but their DUI lawyer is able to get the test results suppressed.  If the result are suppressed, the chances of a legal victory increase dramatically.  In addition, many times the State may reduce the charges to a reckless driving if they feel they may have problems getting the breath test admitted.  My last three cases in which I had a client take and fail the breath test, I was still able to get my clients' charges reduced to a reckless driving.  Failing a test is not the end all and as a DUI defense attorney I often would rather fight a breath test than a breathalyzer refusal.  The State must jump though many hoops in order to have the test result admitted into evidence.  Therefore, the risk may be worth the reward.  In summary, if you take the breath test the chances of not losing your license increases, but the chances of get a criminal conviction also rises.  It is a risk you have to take in order to not lose your license and to have all the charges dismissed.  Even if you do lose, there is a good chance that your license suspension would be less then if you refused the breath test and plead to a refusal.


You should not take the breath test if the any of the following exist:

I would often advise people who have any of the following NOT to take the breath test.

1. A prior DUI (this may lead to mandatory jail)

2. Car accidents with injury to another (This may lead to a felony conviction and/or jail)

3. Employment or careers where you can not have a criminal record ( If you will lose your job because of a criminal record, you may not want to risk taking the breath test).

4. Very High Readings (Lets face it, if you are going to blow a very high reading that is 3 to 4 times the legal limit, you are opening yourself to much harsher penalties, therefore you may not want to take the breath test).

5. People that are likely to do it again (another words if you think you are going to drink and drive again don't take the test because you are setting yourself up for mandatory jail the next time).

Remember if you get pulled over for DUI, use the phone to call a DUI Attorney and he or she will be able to give advice based on the situation.

If you have further questions about DUI or criminal law go to my website at www.criminaldefenselawyerri.com.

Thursday, April 28, 2011

Preventing wrongful convictions based on false confessions.

Confessions are the most incriminating and persuasive evidence of guilt that the state can bring against a defendant. Recent studies by Project Innocence show that in about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty to the charge. There are numerous reasons that a defendant would make a false confession during a police interrogation. The police tactics will often lead a person to give a false statement, though duress or coercion.  However, the jury does not see this, they just get to hear that the defendant said he committed the crime.  Sometimes suspects confess to avoid physical harm or because they are convinced that they will be released from custody if they admit guilt after hours of interrogation.  Others are told they will be convicted with or without a confession, and that their sentence much less if they just confess. Some suspects are told if you don't confess that the police will arrest and charge their wives or mothers of their children and that the children will be taken away.  The fact is that false confessions lead to the miscarriage of justice.  In Rhode Island police interrogations are often conducted in secrecy and they are often not recorded.  There is a new bill that just passed the Senate, which approves the establish a task force to investigate and develop policies and procedures for electronically recording custodial interrogations.  This may go a long way in preventing innocent people from being convicted of a crime that they did not commit. Furthermore, when an innocent person is convicted based on a false confession it dangers the rest of society in that police will often stop further investigation into who the true perpetrator of a crime was.  Remember when you hear about the hundreds and thousands of people accused of murder and rape and other crimes serving long sentence then being exonerated, it means the true perpetrator was still out there and no one was looking for them because no one was investigating their crime. 


If you have further questions about criminal law go to my website at www.criminaldefenselawyerri.com.



Copy of Senate Bill (2011-S0331)
 
2011 -- S 0331 SUBSTITUTE A
======= LC00482/SUB A =======
STATE OF RHODE ISLAND
IN GENERAL ASSEMBLY
JANUARY SESSION, A.D. 2011 ____________
AN ACT RELATING TO CRIMINAL PROCEDURE -- ARREST
Introduced By: Senators Jabour, McCaffrey, Lynch, Metts, and Nesselbush Date Introduced: February 16, 2011 Referred To: Senate Judiciary
It is enacted by the General Assembly as follows: 1    SECTION 1. Chapter 12-7 of the General Laws entitled "Arrest" is hereby amended by 2    adding thereto the following section: 3    12-7-22. Electronic recording of custodial interrogations task force. -- (a) In order to: 4    (1) Minimize the likelihood of a wrongful conviction caused by a false confession; and 5    (2) Further improve the already high quality of criminal justice in our state, the general 6    assembly creates a taskforce to investigate and develop policies and procedures for electronically 7    recording custodial interrogations in their entirety. 8    (b) The task force shall be comprised of the following or their designees: 9    (1) Attorney general;
10    (2) Public defender; 11    (3) Superintendent of the Rhode Island state police; 12    (4) President of the Rhode Island police chiefs' association; 13    (5) Head of the municipal police training academy; 14    (6) President of the Rhode Island bar association; 15    (7) President of the Rhode Island association of criminal defense lawyers; 16    (8) Public safety commissioner of the city of Providence; 17    (9) Chief of police of a department with less than forty-five (45) sworn officers and 18    which does not currently have an established policy concerning the electronic recording of 19    custodial interrogations, to be agreed upon by the task force;
1 2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34
(10) Chief of police of a department (other than one separately designated herein) that already has established a policy concerning the regular electronic recording of custodial interrogations to be agreed upon by the task force; and
(11) Executive director of the Rhode Island commission for human rights.
(c) The attorney general and public defender shall serve as co-chairpersons of the task force and have the authority to call for an designate the time and place of meetings. A majority of members shall constitute a quorum, but a lesser number may hold meetings. The task force shall act only on an affirmative vote of a majority of the voting. All departments and agencies of the state shall furnish such advice and information, documentary and otherwise, to said task force and its agents as is deemed necessary or desirable by the task force to facilitate the purposes of this section.
(d) The task force, in consultation with whatever experts it may deem appropriate, shall study and make recommendations concerning the establishment of a statewide law enforcement practice of electronically recording custodial interrogations in their entirety. In so doing the task force's consideration should include, but are not limited to, the following:
(1) Models from other federal and state jurisdictions; (2) Current policies, procedures, and practices of law enforcement statewide; (3) Types of crimes, investigations, and settings where custodial interrogations should be
electronically recorded; (4) Whether custodial interrogations should be electronically recorded using audio-visual
or strictly audio recording; (5) Whether custodial interrogations should be electronically recorded with or without the
knowledge of the suspect; (6) Appropriate procedures to be followed when the suspect refuses to be, or exigent
circumstances otherwise prevent, the electronic recording of the custodial interrogation; (7) How to most effectively record interrogations in view of an individual police
department's fiscal, staffing, and space constraints; (8) Appropriate policies and procedures concerning the transcription of the electronic
recordings resulting from custodial interrogation; (9) Appropriate policies and procedures concerning the long-term preservation and
storage of the electronic recordings resulting from custodial interrogation; and (10) The desirability of written policies, procedures, training, and/or additional legislation
regarding the electronic recording of custodial interrogations in their entirety statewide. (e) The task force shall submit a report on its recommendations concerning the
2
1    investigation and development of policies and procedures for electronically recording custodial 2    interrogations in their entirety. This report shall be presented to the governor, the chief justice of 3    the Rhode Island supreme court, the speaker of the house of representatives, the president of the 4    senate, and the chairpersons of the judiciary committees of both the house of representatives and 5    the senate no later than February 1, 2012. The task force shall terminate on the date that is 6    submits its report.
7    SECTION 2. This act shall take effect upon passage.

 

Tuesday, April 26, 2011

Defendant represents self gets Maximum Sentence

There is an old adage that a person who represents himself has a fool for a client.  What is not contained in the following press release by RI.gov regarding the recent trial, conviction and sentencing of a Massachusetts man on federal firearm charges is that the defendant represented himself on these serious charges.  This man was sentenced to fifteen years to serve in a federal prison, the maximum sentence permitted by statute.  If this defendant had an attorney he may have ended up with a much lesser sentence. Whether it may be the public defender, court appointed counsel or a private attorney, always have a lawyer handle your criminal case.  A lawyer will guide you through the entire legal maze and provide you protection that you otherwise would not have. 
If you have further questions about criminal law go to my website at www.criminaldefenselawyerri.com.

Press Releases

Massachusetts Man Who Discharged A Firearm During Struggle with RI State Police Detective Sentenced to 15 Years in Federal Prison
Joint federal and state prosecution secured conviction of Arjusz Roszkowski on federal firearm charges.
A Reading, Massachusetts man convicted in September 2010 on federal firearms charges in connection with a November 2009 scuffle with a Rhode Island State Police Detective in Lincoln Woods State Park, during which he discharged a firearm, was sentenced Friday in U.S. District Court in Providence to 180 months in federal prison. The sentence, imposed by U.S. District Court Judge William E. Smith, was announced by United States Attorney Peter F. Neronha and Rhode Island Attorney General Peter F. Kilmartin.
Arjusz Roszkowski, 28, was convicted by a jury of being a felon in possession of a firearm and possessing a firearm with an obliterated serial number following a three day jury trial and less than three hours of deliberation. The case was jointly prosecuted in federal court by Assistant U.S. Attorney Stephen G. Dambruch and R.I. Assistant Attorney General Pamela Chin.
U.S. Attorney Peter F. Neronha commented, “Fifteen years in prison, the maximum permitted by statute, is precisely the right sentence for the hardened, gun-toting criminal who is the subject of this case. I am grateful for the fine work of the federal/state prosecution team, whose collective efforts have ensured that Mr. Roszkowski will not be in a position to harm others for a very long time.”
Rhode Island Attorney General Peter F. Kilmartin said, “This is a case of law enforcement at its best, working together to get dangerous felons off our streets for a very long time. There are many factors that go into the decision where to prosecute a case. In this case, it was determined a joint prosecution of the defendant in federal court would best serve justice due to the tougher minimum sentences for the charges.”
During trial, the prosecutors presented evidence that in November 2009, Roszkowski placed a telephone call to a person he believed would sell him firearms and ammunition. The call was actually placed to Rhode Island State Police Detective Christopher Zarrella, who was acting in an undercover capacity. During the call, which was recorded, the two agreed to meet the following day for the purpose of the transaction.
When the two met the next day in a parking lot of Lincoln Woods State Park, and as Roszkowski exited his vehicle and approached the detective, the detective observed what he believed to be a firearm sticking out of the defendant’s waistband. Detective Zarrella identified himself as a police officer and attempted to restrain Roszkowski. Roszkowski resisted, and during the course of an ensuing struggle, Roszkowski discharged the firearm and was wounded.
The matter was investigated by the Rhode Island State Police and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Related links
Department or agency: Department of the Attorney General
Online: http://www.riag.ri.gov/
Release date: 04-25-2011