Driving Under the Influence
 
What constitutes driving under the influence?
 
Driving under the influence of alcohol (DUI) is probably one of the most commonly committed crimes.  Yet, the crime is sometimes committed by respectable members of the community who have never before had any trouble with the law.  The driver of a motor vehicle need not be drunk to be convicted of operating or driving under the influence of alcohol.  All that need be shown is that the driver or operator is affected by the alcohol to the extent which renders him or her incapable of safely operating a motor vehicle.  A person may not seem to be drunk, but if his or her reflexes have been impaired by drinking, he or she can be convicted for driving under the influence.  Under Rhode Island law, there is no requirement that the driving be on a public road.  A person may be convicted for operating or driving a vehicle anywherein the state.  It is conceivable that someone could be convicted for driving under the influence while he or she was pulling into or backing out of a private driveway or driving in a parking lot.  All that need be shown is that the person was driving and was under the influence of an intoxicating liquor to a degree that rendered the driver incapable of safe operation at the time he or she was driving.
 
Under Rhode Island’s drunk driving law, a person can also be found guilty of driving under the influence if, at the time of driving, he or she had a blood alcohol content (BAC) of .08 or more.  The blood alcohol content becomes the crime itself.  Even if the person’s blood alcohol content is less than .08, that person can still be found guilty of DUI.  In sum, a person can be convicted of DUI if: 
 
1. his/her blood alcohol content is .08 or above;
 
2. in the event that there is no blood alcohol content reading, if the officer testifies that based on certain observations, the driver was under the influence to a degree that rendered the driver incapable of safely operating; and/or
 
3. some combination #1 and #2 above.
           
What happens if a person is stopped by the police for suspicion of driving under the influence?
 
If a police officer has reasonable grounds to believe that a person is operating a motor vehicle while under the influence of intoxicating liquor, he/she may ask that person to perform certain tests, known as field sobriety tests, to determine whether or not the person is actually under the influence of intoxicating liquor.  Field sobriety tests vary in number and kind, and each police department favors certain tests over others.  The standardized field sobriety tests consist of the one-leg stand test, the walk and turn test, and the horizontal gaze nystagmus (rapid, involuntary, oscillatory motion of the eyeball) test.  These tests are not mandatory and the driver can refuse to submit to these tests.  However, the police officer may arrest someone if they refuse to submit to the field sobriety tests. Recently the police have begun to employ preliminary breath tests (PBTs).  These tests are not mandatory and if someone refuses to submit to a PBT he or she is subject to a fine (and despite the title of the statute), will not be suspended for refusal to submit to a preliminary breath test.  After completion of the field sobriety tests, the police officer may, based on his or her observations, arrest the person for driving under the influence, advise him or her of their constitutional rights, and ask them to submit to a chemical test.  Most police departments in Rhode Island use a breath test, although the police actually have the option of administering a breath test, a urine test or a blood test.  Under Rhode Island law, a person has the right to refuse to take any of the chemical tests.
 
What happens if a person refuses to take a chemical test?
 
In Rhode Island, anyone who operates a motor vehicle is deemed to have given his or her consent to take a chemical test if a police officer reasonably believes that person is driving under the influence of intoxicating liquor.  The following administrative, as opposed to criminal, penalties will be imposed after a hearing and if someone refuses to take a chemical test and is a first-time offender:
 
  1. a minimum fine of $200-$500;
  2. a highway assessment fee of $500;
  3.  a $200 Department of Health assessment fee;
  4.  6 to 12 months loss of license;
  5.  10 to 60 hours of community service;
  6.  Attendance at a special course for those convicted of driving while intoxicated or drug treatment.
 
After the suspension period has expired, the person must pay a reinstatement fee and additional assessments prior to license reinstatement.  The administrative penalties are mandatory and cannot be suspended or reduced by the Traffic Tribunal Judge or Magistrate.  There are further and stricter penalties for subsequent violations for the same offense.
 
Some police departments are dissatisfied with an administrative conviction for refusal to submit to a chemical test.  Other police departments prosecute criminally for driving under the influence even without the benefits of breath, blood or urine test evidence.  Some police departments will prosecute a suspected drunk driver both administratively (for refusal) and criminally (for DUI).
 
What happens if a person agrees to take a chemical test?
 
Most police departments use breath testing equipment to test the amount of alcohol in a person’s blood.  The machines test the amount of alcohol a person has in his or her lungs and make a mathematical computation to convert breath alcohol to blood alcohol.
 
If a person agrees to take the test, the police have a certified breath test operator utilizing certified breath testing equipment.  The breath test consists of two phases. Two separate readings are taken within 15 minutes of each other.  Acceptable readings must be within + or - .020g/210L.  If results are more than + or - .020g/210L apart, a third sample is taken.  If the person’s blood-alcohol content (BAC) level is .08 or greater, the police have strong evidence of guilt of driving under the influence. If the test is given within a reasonable period of time after operation, at trial, the court is allowed to draw the inference that the BAC at the time of driving was the same as when the test was administered. 
 
If a person agrees to take the breath test, the police must advise them of their right to have an additional test taken at the individual’s own expense, and the police must give the person a reasonable opportunity to exercise this right. In both refusal cases and driving under the influence cases, the police must advise the person, immediately after the arrest, of his or her right to be examined by a physician of their choosing at their expense and, at the trial of that person, the prosecution must prove that the person was advised of his or her right to be examined by a physician of their choosing and also prove that person was afforded an opportunity to exercise that right.
 
What happens if the readings indicate the person is intoxicated?
 
In Rhode Island chemical tests readings of .08 or more are sufficient, without any further evidence, to sustain a conviction for driving under the influence of alcohol. However, a person retains the right to present evidence to dispute any evidence of intoxication, including evidence which rebuts or calls into question the chemical test result.  This rebuttal evidence can take many forms, and an attorney should be consulted with respect to preparing a defense on any charge of driving under the influence.
 
What happens if a person is found guilty of driving under the influence?
 
Driving under the influence is a criminal offense.  The minimum penalties for driving under the influence (first offense) are as follows:
 
  1. a fine of  $100-$400;
  2. 10 to 60 of community service;
  3. 3 to 12 months loss of license and/or up to one year in jail;
  4. a $500 highway assessment fee;
  5. a criminal/juvenile justice information system’s fee of $173;
  6. attendance at a special course for those convicted of driving while intoxicated and/or alcohol treatment;
  7. requirement to maintain proof of responsibility for 3 years
  8. additional re-instatement fees and insurance requirements for registrations.
 
There are stricter penalties including a mandatory jail sentence, for second and subsequent violations and convictions.
 
All of the criminal penalties, including jail sentences for second and third convictions, are mandatory and cannot be suspended or reduced by a judge.
 
NOTE
 
This piece is produced as a public service by the Rhode Island Bar Association and intended to provide background information. This is not a substitute for legal advice and representation by a licensed attorney of the Rhode Island Bar.
 
Rhode Island Bar Association
115 Cedar Street * Providence, Rhode Island * 02903
 
website: www.ribar.com           telephone: 401-421-5740