United States Supreme Court to review if a refusal to take a breath or blood test can constitutes a crime under the constitution.

Questioning the Constitutionality of Treating a DUI Refusal as a Crime

I often wonder how it could be considered a crime to refuse to take a breath test.  Under Rhode Island law, if a person refuses a breath or blood test twice in a matter of 5 years it is considered a crime.  This legislation seems to contradict the 5th amendment to the United States constitution as well as the Article 13 of the Rhode Island constitution.  

The Fifth Amendment protects criminal defendants from having to give statements if said statement may incriminate themselves. This ability to remain silent is a bedrock principle that the Framers of the Constitution believed in when they penned the Fifth Amendment.  Furthermore, the Rhode Island Constitution, Under Article 1, Section 13,  in its declaration of rights section also protects a person from giving self incriminating evidence.  

“Section 13. Self-crimination. -- No person in a court of common law shall be compelled to give self-criminating evidence.”  

Clearly,  the Rhode island Constitution in addition to the US Constitution protect the rights of defendants from giving self-criminating evidence.  

So why is it in Rhode Island that a person is told they have a right to remain silent but if they do they can be charged with a crime?  The Rhode Island state legislature as well as the court has turned it’s back on the principle that one has a right to remain silent under the Federal constitution as well as a right not to give self-incriminating evidence under the State constitution.  The law as it stands now, stands for the proposition that if you do not help the State gain evidence against you in a DUI investigation,  then you have committed a crime.  This likely was not the intent of the framers.  We all know DUI’s are dangerous, and that they need to be stopped, but at what expense?  The State can still prove a DUI case without a breath reading. Is it necessary to rip up the State and Federal Constitution to help the law enforcement? Is the next step to say if you don’t let the police search your house you can be charged with a crime, or if you do not give a statement in a criminal drug case you can be charged as well?  

Thirteen states, including Rhode Island  make it a crime to refuse blood alcohol tests. The United States Supreme Court agreed Friday to hear cases coming from  two of those states. Specifically, the US Supreme Court will hear cases from Minnesota and North Dakota in which the Court will decide if a defendant's refusal to take breath tests can be the basis for a criminal charge.

The court has previously ruled that blood tests are searches and that a warrant in many cases will be usually needed in order to obtain the blood test. The whole intent of the of the refusal law is to establish a civil penalty to convince the defendant to take a breath test.  It is my belief that the 13 states that have made it a crime to refuse blood alcohol tests a crime have gone too far in making the act of not incriminating one’s self a crime.

NEW UPDATE FOR DUI WEBSITE

Attorney Michael Zarrella is pleased to announce the most recent update for his DUI website is now available for viewing.  The update includes the most recent DUI news and laws.  The Rhode Island DUI laws have changed dramatically over the past few years. The new update includes, but is not limited to, the new DUI law regarding the interlock system for DUIs as well as refusals.  This update’s goal is to help people understand the DUI and refusal law,  as well as giving the legal community a reference for DUI defenses.  If you are in the need for a DUI lawyer visit my website at www.ridrunkdrivingattorney.com or call me at 401-523-5271

Winning a DUI case even with a failed breathtest

    Most people think that if you failed a breath test you can never beat a DUI charge.  This is simply not true.  Numerous defenses in DUI cases have always been there, but now more than ever,  a failed breath test may not lead to a DUI conviction.  The new law on DUI and refusals allowed the judges and magistrates in the traffic court to lower a person’s suspension on a refusal to 30 days, as long as the drivers have an ignition interlock system installed in their car.  This law was added so that drivers would not have to lose their license for the mandatory 6 months to 1 year, which in turn would often cause the drivers to lose their jobs in addition to their livelihood.  In return, the State would benefit by not allowing people that have been drinking to start their cars, through the requirement of the installation of an ignition interlock device in their car for a period of up to 2 years.  

    The requirement of the installation of the device, was supposed to be helpful to everyone because drivers that refused a test could keep their jobs and the citizens of Rhode Island would be safer because drunk drivers would not be able to start their cars and drive even if they just had one or two drinks.  

    However, a defective form called “Rights for Use at Station” was submitted to all the Rhode Island police departments from the Rhode Island Attorney General’s Office.  As a result, a real legal question has arisen as to whether all DUI breath test cases are valid and whether their results are now in jeopardy of being excluded from the evidence.  The problem arises in that the “Rights for Use at Station” form is misleading in that it tells drivers that if they do not take the breath test their license will be suspended for a period of  6 months to 1 year.  This is no longer true.  The new law CLEARLY allows a defendant the possibility of getting his or her  license back as soon as 30 days provided that they get an ignition interlock system installed.  In addition, the defendant could also get what is called a “works license” even during the license suspension.  Because this form does not provide the defendant accurate information with respect to their legal rights, the defendant may have been misguided in taking a breath test because they feared the inaccurate penalties of refusing a breathalyzer test which were contained on the form.  Due to this inaccuracy, an argument can be made that the breath test against the defendant was misinformed therefore cannot be used against them.  If the breath test results are suppressed in a DUI case, the State will have a very difficult time in proving a DUI.  This problem with the form  has lead to numerous city and town solicitors reducing DUI’s to lesser charges.   If you have been arrested for a DUI, you need to call a Rhode Island DUI lawyer immediately. 

Rhode Island Domestic Violence Update

     The Rhode Island General Assembly and the law enforcement community in Rhode Island is consistently working to increase the penalties for domestic violence convictions.  They have also worked to revise classifications of certain crimes from misdemeanors to felonies.  As a result, on individual charged with a domestic violence crime in Rhode Island must take the charge very seriously and hire an experienced domestic violence attorney who will work to have the charges reduced or dismissed to avoid conviction and the harsh penalties associated with a domestic violence conviction.
     In 2012, the Rhode Island General Assembly revised the domestic violence law by classifying the crime of strangulation as a felony.  Prior to this legislation, strangulation was treated as a misdemeanor simple assault with a penalty of up to 1 year in prison.  Under the new classification as a felony, a conviction of domestic violence strangulation could result in up to 10 years in prison.
     Strangulation within a domestic relationship is defined in the statute R.I.G.L. Section 11-5-2.3 as "knowingly and intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person, with the intent to cause that person harm."  The individual accused of strangulation will be prosecuted for the crime of domestic violence strangulation if they are in a domestic relationship and as long as it can be proven that there was "intent to cause that person harm."  It does not need to be proven that the individual intended to kill the person.
     As with any newly enacted law, law enforcement is very aggressive in charging individuals under the new statute whether or not the crime can truly be classified as domestic strangulation as opposed to charging and individual with simple assault.  As a result, an individual could be facing up to 10 years in jail as a result of the felony charge as opposed to up to 1 year in jail for a misdemeanor assault.  Additionally, the charge of a felony applies to an individual without any prior convictions. Consequently, it is critical to have an experienced domestic violence attorney analyze the facts of your case to determine if law enforcement correctly charged the crime as domestic strangulation rather than a simple misdemeanor assault.  Any conviction under the domestic violence prevention act requires the implementation of a no contact order and domestic violence counseling.
      This new law has been criticized by many in the legal profession as being overly broad in it's scope and allowing for law enforcement to abuse its discretion by erroneously charging individuals with a domestic strangulation crime rather than a simple assault. An experienced domestic violence strangulation defense attorney is familiar with the facts needed to support a charge of strangulation and will defend an individual wrongly charged with strangulation and will seek to have the charge reduced.  This defense will make the difference in a person facing up to 1 year in jail or facing up to 10 years in jail with a felony conviction on their record.
      Furthermore, under the Domestic Violence Prevention Act each conviction for a domestic violence offense increases the punishment imposed by the Court.  For instance, a second misdemeanor domestic violence violation shall require imprisonment for a period of not less than 10 days and not more than 1 year.  A third and subsequent domestic violence violation is considered a felony and imprisonment of not less than one year and not more than 10 years will be imposed.  Consequently, each domestic violence charge must be defended by an experienced criminal defense attorney who must work toward a dismissal of the charge, reduction of the charge or a disposition that will not constitute a criminal conviction.  I have the experience to work for you to reduce your domestic violence charge or have it dismissed.
     I have been defending individuals charged with crimes such as domestic violence in Rhode Island in addition to all other crimes for over 20 years.  I have successfully and tirelessly worked to have charges reduced or dismissed. Don't take chances with your future and your freedom!  Hire an experienced domestic violence defense attorney to review your domestic violence case and begin to work on your defense.

Rhode Island DUI, Refusals and Ignition Interlock Devices

   

 Rhode Island DUI Ignition Interlock Devices

    With the hopes of preventing the loss of lives due to drunk driving, the Rhode Island General Assembly enacted a law authorizing the courts to prevent individuals found guilty of driving under the influence from driving vehicles that do not have an installed ignition interlock system.  This blog will explain more fully what an ignition interlock device is and the requirements associated with the device.
     An ignition interlock device (IID) is a device that is directly wired into the ignition inside of a vehicle and requires the driver of the vehicle to breath into the device prior to starting the vehicle.   This system will detect alcohol on a person's breath.  If the concentration of alcohol on a driver's breath is above the programmed limit of the device, the engine of the vehicle will not start.  As an individual drives the car, the device will periodically require breath samples to make sure there is not alcohol in the individual's system.
     If an individual has been adjudicated of driving under the influence and prohibited from operating a vehicle without an ignition interlock device, the individual must contact a company which has been certified by the State of Rhode Island to install, lease and sell the systems.  Currently, there are 4 companies certified by the State and are listed on the Rhode Island Division of Motor Vehicle's website.  These companies have been certified by the state because they have met strict government safety requirements.  All costs associated with the installation and monitoring of the system in addition to a court administrative fee will be required to be paid by the adjudicated individual.
     If the Court has ordered the use of an ignition interlock system, a notation is made on the person's driving record which will specify the period of use of the ignition system.   The Court will also require proof of the installation of the system and periodic reporting in order to verify the proper operation of the system.  The Court will also require the system to be monitored for proper use and accuracy by one of the certified companies at least every six months or more frequently as required.

Penalties for violation of Rhode Island DUI interlock law or DUI hardship license

     The Court will impose penalties on a person who violates the court order requiring the use of the system, who has altered or tampered with the system, has operated a vehicle not equipped with the required system or has asked another person to start the equipped vehicle for them.  Violation of the court order may result in a charge of a misdemeanor punishable by up to 1 year in prison and/or a fine of up to $1000. 
  However, the violation of the use of a hardship license may be in question because under the current interlock law any individual who violates the use of their hardship license shall be subject to the penalties enumerated in Section 31-27.18.1.  The only problem is that under Rhode Island law there is no Section 31-27.18.1.  This creates a problem, in that, if a person is driving on their hardship license at the wrong times or the wrong places there may be no way of punishing them. 
    If you or a loved one has been charged with a DUI or Refusal, please contact an experienced criminal defense lawyer who is familiar with this newly enacted law and all of the other laws pertaining to your case.  I have been practicing criminal law for over 20 years and have vast experience with drunk driving defense.  Please call me today to discuss your case and to begin working on your defense.
      For more information please review my websites at www.rhodeislanddefenselawyer.com or  www.ridrunkdrivingattorney.com.

Update on new Rhode Island DUI law.

NEW RHODE ISLAND DUI LAW UPDATE 

On January 1, 2015, Rhode Island General Law §31-27-2  Driving Under Influence of Liquor or Drugs came into effect.  Since the date the law came into effect, it has become clear that there is much confusion with respect to what the new Rhode Island DUI and refusal law penalties hold. It is important that all attorneys practicing criminal defense read and understand this new law.   Over the last week, many attorneys have asked me what the new penalties are under the new Rhode Island DUI and Refusal law.  Let's be clear: the new DUI law lowers the minimum penalty for a Rhode Island DUI as long as the defendant is able to have an interlock system installed in their automobile. In addition, the law also allows for a defendant to be granted a work license as part of their disposition during the time of their minimum suspension.  This work license will be valid for 12 hours a day for the sole purpose of work.   I have seen many of the attorneys and even some judges have some confusion in determining what the new law allows.

NEW RHODE ISLAND DUI PENALTIES WITH INTERLOCK

If you are charged with a first offense refusal in Rhode Island, the minimum penalty can be reduced from 6 months to 30 days, as long as the person is ordered to have a interlock device on their automobile for a period of 6 months to 2 years.  If you are ordered to have an interlock device, then you can apply for a hardship license.

Any person with a DUI with no alcohol readings or a .01-.15 reading may have their license suspension reduced from a minimum of 90 days to 30 days, as long as they have an interlock system installed on their automobile for a period of 3 months to 1 year.  This will also allow them to apply  to have a hardship license for the 30 days.

Any person with a first offense with a reading between .08 and .1 will still have a minimum suspension of 30 days, but with the installation of the interlock system from 3 months to 1 year will be eligible for a hardship license.

Any person with reading of over .15, can have a reduction in their sentence to 30 days but must  have and interlock system in their automobile for 6 months  to 2 years.  They also may be eligible for a hardship license.

OVERVIEW OF INTERLOCK VS.  NO INTERLOCK

 

FIRST OFFENSE DUI OR REFUSAL

First offense DUI with reading of  over .08
With interlock                                                     Without interlock
Minimum 30 day loss of license,                          Minimum 30 day loss of license
May get hardship license                                       No hardship license
Interlock 3 months to 1 year


First offense DUI with reading of  over .10 to .15 or no reading.

With interlock                                                      Without interlock
Minimum 30 day loss of license,                           Minimum 90 day loss of license
May get hardship license                                        No hardship license
Interlock 3 months to 1 year 

First offense DUI with reading of  over .15
With interlock                                                      Must get interlock if over .15
Minimum 30 day loss of license,                
May get hardship license
Interlock 3 months to 1 year

First offense refusal
With interlock                                                     Without interlock
Minimum 30 day loss of license,                           Minimum 6 month loss of license
May get hardship license                                       No hardship license
Interlock 6 months to 2 years

SECOND OFFENSE DUI OR REFUSAL WITHIN 5 YEARS

All second DUI or refusal offenses must have a interlock

Second offense DUI with reading of  over .08 to .15 or no reading.

With interlock                                                    
Minimum 45 day loss of license,                          
May get hardship license
Interlock 6 months to 2 year                                      

Second offense DUI with reading of  over .15
With interlock                                                    
Minimum 45 day loss of license,                        
May get hardship license
Interlock 6 months to 2 years 
 

Second offense refusal
With interlock                                              
Minimum 60 day loss of license,                       
No hardship license                                     
Interlock 1 year to 4 years 

As you can see, there are many benefits to the newly enacted law.  In order to take advantage of these benefits, you must be sure to hire an experienced DUI Criminal Lawyer if you have been charged with DUI or Refusal in the State of Rhode Island.  I have been asked by many attorneys to clarify and interpret this law because of my extensive experience as a Criminal Lawyer who has defended many DUI and Refusal cases.  Please contact me to discuss your case and to determine the best strategy to defend your DUI or Refusal case and to determine how to take advantage of the benefits in the newly enacted penalties.
 
The law Office of Michael J. Zarrella has been helping people with their DUI and refusal cases for 20 years.  If you been arrested for DUI or refusal in Rhode Island  call him now at 523-5271 or email him at Mjzarrella@gmail.com.

For more information please review his websites at www.rhodeislanddefenselawyer.com or  www.ridrunkdrivingattorney.com.

               

              

New Year, New DUI laws

Starting January 1, 2015, a new DUI and refusal law will be going into effect in the State of Rhode Island.  As I previously blogged on November 6, 2014, this new DUI law will have a large impact on those people charged with DUI or chemical test refusals.  Rhode Island General Law §31-27-2  Driving Under Influence of Liquor or Drugs becomes effective January 1, 2015 and will allow a defendant the ability to have a work license in exchange for having an interlock system installed in their vehicle.  A work license, otherwise known as Cinderella license, hardship license, or restricted license all refer to the new Rhode Island law that allows a drunk driving or refusal offenders to drive for a legitimate purpose such as going to work. The hardship license will be valid only for twelve (12) hours per day to get to and from work and shall be given in conjunction with the installation of an ignition interlock device in the vehicle.

An ignition interlock device is connected to a vehicle’s ignition and requires the driver to blow into  the interlock device prior to starting the vehicle in addition to blowing into the device while the vehicle is operating. This is done in order to prevent a driver from being able to start his or her automobile or continue to drive the automobile if there is a detection of alcohol on his or her breath.

This law is very helpful in many ways.  First and foremost, this law will prevent drunk drivers from being able to start their cars. A second effect is that it will allow drivers who receive a DUI not to have their lives completely destroyed as a result of losing their ability to drive to and from their work.  This law will allow many people to keep their employment after a DUI.

Not everyone will be able to get a hardship license, since the law is new and complicated.  Now more then ever is it important that you hire the right lawyer to represent you in you drunk driving or breathalyzer refusal case.  The experienced DUI lawyer not only can help you win your case, but now can help you in your effort to receive a hardship license. 

Do not take chances with your future! You need to hire a top DUI/drunk driving lawyer now.  Call Attorney Michael J. Zarrella to review your case and help you plan a winning defense.  Attorney Michael Zarrella has been winning DUI/drunk driving cases for 20 years.  For more information please review his websites at www.rhodeislanddefenselawyer.com or  www.ridrunkdrivingattorney.com.