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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.