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December 7, 2012

Good Week in Criminal Court

I don't use this forum to discuss criminal cases too often, but after an exceptional week in Court, I want to share some good results. This week I secured the dismissal of a DUI case and the dismissal of a domestic assault charge. My approach to my client's case whether personal injury or criminal is to aggressively pursue the matter and prepare every case as if we are going to trial. I never assume an injury case is going to settle and I never assume that a criminal case is going to result in a plea... this approach is the most effective way I know to ensure great results for my clients. This week was a good one in the criminal courts.

My first client was arrested for DUI following an auto accident with significant property damage and injuries. Although it was the first offense, the prosecution was looking for severe penalties because of the accident. After aggressively fighting this case, the DUI was dismissed for lack of evidence and my client was left to face only civil penalties.

The second charge dismissed this week was for domestic assault. In this case, the client had a prior record which was resolved by a criminal filing. His year for the criminal filing had not yet passed and the new domestic assault charge also meant that he would be violated on the filing charge. After a full hearing in front of the Judge, the violation was dismissed. This was a major victory for a client who was facing jail time should he be found in violation.

If you or a friend or family member has been arrested in Rhode Island or Massachusetts, contact my office right away for a free consultation. Make sure you hire an attorney with a plan and commitment to go the distance. I don't take shortcuts or take the easy way out.

April 26, 2011

Representative Robert Watson Will Face Tougher DUI Penalties in Connecticut

Rhode Island House minority leader, Robert Watson, was arrested over the weekend in Connecticut for DUI and marijuana possession. (I will leave it to the reader to supply their own thoughts on the hypocrisy of Mr. Watson whose previous statements suggest that RI is too lax on drug crimes and immigration.) Unfortunately for him, Connecticut is not so lax in the punishment of DUI. The penalties in that State are far more severe than the penalties for DUI in Rhode Island.

In Connecticut, a first offense DUI results in 2 days mandatory jail time with probation up to 6 months and 100 hours of community service as well as a license suspension of one year.
In comparison, first offense DUI in RI very rarely results in any jail time or probation and a license suspension UP TO six months. The amount of community service is usually far less also.

April 12, 2011

Attorney Joseph Lamy Secures Dismissal of DUI Charges!

Another criminal defense success story for the Law Office of Joseph Lamy. Today in Kent County Courthouse, Attorney Joseph Lamy secured a dismissal of drunk driving charges for his client.

The client was involved in an accident in Coventry, RI. At the scene, Coventry police detected a smell of alcohol and asked the client to submit to a field sobriety test, which she subsequently failed. The client refused to submit to the breathalyzer test, but a small bottle of water that contained vodka was found in the vehicle. After aggressively defending the case and showing the weaknesses in the State's case, the DUI charges were successfully dropped.

The client was facing possible jail time and a suspended license of up to one year in addition to fines and other additional penalties. Following today's result, the client avoided all such punishment and avoided any form of criminal record.

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March 24, 2011

Drunk Driving Apps???

Officially, as of today, there is an "app" available on your smartphone for every possible topic. Everyday, there seems to be a new controversial app that incites the public to force Apple and Droid to remove the app, such as the "gay cure" app and the "babyshaker" app. Now pressure is mounting on Apple to remove an app called checkpoints, which along with similar apps, allows users to identify police DUI checkpoints so that they can be re-routed or avoided.

According to a letter from US Senators Lautenberg, Reid, Schumer and Udall, there are several apps with a registered 10 million users! The apps all commonly feature the ability for users to point out road blocks and and police checkpoints that are searching for drunk drivers. Other users who are leaving the bar inebriated can open the app to make sure they are not driving into a drunk driving patrol.

Obviously, our Senators above are looking to have any such app removed immediately because of the risk to public safety. After all, drunk driving related fatalities exceed 40,000 a year!

March 9, 2011

Did You Know That You Can Refuse a Field Sobriety Test?

If you are pulled over for suspicion of driving under the influence, you may be aware that you are allowed to refuse to take a breathalyzer test. If you refuse to take a breathalyzer test, you will be charged with refusal to submit to a breathalyzer test and will be subject to additional penalties, including a six month license suspension. The benefit of a refusal to submit is that the police will not be able to introduce chemical evidence of your intoxication.

Many people, however, fail to realize that even the field sobriety test is voluntary. You are under no obligation to submit to a field sobriety test when asked by the police. If you refuse, the police will be forced to make a decision whether to arrest you based on what little evidence that they have observed (i.e. slurred speech, bloodshot eyes, etc.)

Most people will submit to a field sobriety test because a) they think that they have to; or b) they feel that they can pass the test. As to part "A", I have already informed you that you do not have to submit to the test. As for part "B" - DO NOT ASSUME THAT YOU CAN PASS THE TEST!! Even someone who is completely sober or had a single drink can fail a field sobriety test because it is difficult. I know that if I were asked, even without drinking, that I would have a terribly tough time standing on one leg for thirty seconds without wobbling. In addition, the police officer will be making you nervous and this will make it more likely for you to make a mistake.

Furthermore, the field sobriety test is entirely subjective. There is no scientific basis for this test. Instead, police officers are given a number of signals to look for to identify a drunk individual. However, there is no magic number to the amount of mistakes that you can make and still pass the test. If you still do not believe me, ask a police officer friend of yours how many people suspected of drunk driving actually pass the field sobriety test.

Based on the way you were driving your vehicle, or based on your speech patterns and conduct, the police officer may still decide to arrest you if he feels that he has probable cause. However, by giving the police little additional evidence to support the arrest, you will put yourself, and your criminal defense attorney in a better position to win at trial.

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March 9, 2011

Did You Know That You Can Refuse a Field Sobriety Test?

If you are pulled over for suspicion of driving under the influence, you may be aware that you are allowed to refuse to take a breathalyzer test. If you refuse to take a breathalyzer test, you will be charged with refusal to submit to a breathalyzer test and will be subject to additional penalties, including a six month license suspension. The benefit of a refusal to submit is that the police will not be able to introduce chemical evidence of your intoxication.

Many people, however, fail to realize that even the field sobriety test is voluntary. You are under no obligation to submit to a field sobriety test when asked by the police. If you refuse, the police will be forced to make a decision whether to arrest you based on what little evidence that they have observed (i.e. slurred speech, bloodshot eyes, etc.)

Most people will submit to a field sobriety test because a) they think that they have to; or b) they feel that they can pass the test. As to part "A", I have already informed you that you do not have to submit to the test. As for part "B" - DO NOT ASSUME THAT YOU CAN PASS THE TEST!! Even someone who is completely sober or had a single drink can fail a field sobriety test because it is difficult. I know that if I were asked, even without drinking, that I would have a terribly tough time standing on one leg for thirty seconds without wobbling. In addition, the police officer will be making you nervous and this will make it more likely for you to make a mistake.

Furthermore, the field sobriety test is entirely subjective. There is no scientific basis for this test. Instead, police officers are given a number of signals to look for to identify a drunk individual. However, there is no magic number to the amount of mistakes that you can make and still pass the test. If you still do not believe me, ask a police officer friend of yours how many people suspected of drunk driving actually pass the field sobriety test.

Based on the way you were driving your vehicle, or based on your speech patterns and conduct, the police officer may still decide to arrest you if he feels that he has probable cause. However, by giving the police little additional evidence to support the arrest, you will put yourself, and your criminal defense attorney in a better position to win at trial.

Continue reading "Did You Know That You Can Refuse a Field Sobriety Test?" »

January 31, 2011

Prescribed Medications Can Result in DUI

Many people are unaware that in Rhode Island and Massachusetts, properly prescribed medications can result in an arrest for DUI if the side effects of the drug render you unable to safely drive a motor vehicle. Obviously, there is no breathalyzer test for prescription medications, but Rhode Island General Law 31-27-2 holds that:

Proof of guilt under this section may also be based on evidence that the person charged was under the influence of intoxicating liquor, drugs, toluene, or any controlled substance defined in chapter 28 of title 21, or any combination of these, to a degree which rendered the person incapable of safely operating a vehicle. The fact that any person charged with violating this section is or has been legally entitled to use alcohol or a drug shall not constitute a defense against any charge of violating this section.

The last line above is clearly key - Legal use is not a defense! When prescribed medication, be sure to discuss the side effects with your doctor. Try not to drive your vehicle until you are sure how the drugs effect you. If you feel drowsy or dizzy while on the medication, it is best to avoid driving because it can result in an auto accident or arrest for DUI.

It is in your best interest to hire an experienced criminal defense attorney early to begin attacking the State's case. With an aggressive attorney representing you we may be able to show that the drug did not effect you as severely as reported by the police. With the proper representation, a DUI case with no breathalyzer or other evidence of intoxication, may be thrown out.

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November 16, 2010

Feds Tell Massachusetts It is Not Doing Enough to Combat Drunk Driving

The National Transportation Safety Board (NTSB) is criticizing Massachusetts for not doing enough to curb "hardcore" drunk drivers. The term "hardcore" drunk driver is reserved for those who operate a car with a blood alcohol content of .15 or higher, or for those who have previous drunk driving arrests. So called hardcore drunk drivers are to blame for the overwhelming majority of alcohol related auto fatalities. In fact, of the 10,839 people killed in alcohol related car accidents last year, 7,607 fatalities were caused by hardcore drunk drivers.

The NTSB has outlined suggestions for States to adopt in an effort to curb drunk driving. Massachusetts, along with a few other States, has adopted only a few of these suggested plans. Among the NTSB suggestions to curb drunk driving are:

  • Frequent and statewide sobriety checkpoints;
  • Impose tougher penalties for drunk drivers with a BAC over .15;
  • License revocation;
  • Prohibit diversion programs (i.e., force judges to impose the most severe penalties);
  • Require prior DWI convicts to maintain a zero BAC;
  • Install ignition interlock devices.

It is not uncommon for our States to be on the wrong end of NTSB opinion. Just a few years ago, the NTSB also came out and criticized Rhode Island for not doing enough against drunk driving. It is a serious problem in every State that causes far too much injury.

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September 16, 2010

Should a Drunk Driver Who Killed in an Auto Accident be Charged with Murder?

The trial of Andrew Gallo is beginning this week in California. Gallo, 23, is the man who caused the accident which killed Angels pitcher, Nick Adenhart, along with two other people. Along with the obvious DUI charges, the California prosecutor has charged Gallo with three counts of second degree murder. It is uncommon for a drunk driver to be charged with murder rather than vehicular manslaughter, manslaughter, or other lesser offenses. The reason it is uncommon is because murder is an "intent" crime meaning that the death of the other person was not accidental but was instead an intended result. Drunk drivers, rarely if ever, intend to kill even though they are aware that it is a danger if they drive drunk.

But prosecutors are playing it tough with Gallo. Their stance may be due to the publicity of the case because Gallo killed a major league baseball player, but prosecutors also point to the fact that at the time of the accident Gallo's blood alcohol level was three times the legal limit. Also, Gallo is not a first time offender. Gallo was arrested for DUI in 2006 and signed papers indicating that he was aware that he could kill someone if he drives drunk.

Prosecutors in Orange County have been actively pursuing murder charges in cases like this rather than manslaughter. As the crackdown on drunk driving continues across the Country it is important to watch decisions like this. A jury is never sympathetic to a drunk driver and most of the public, even though not based on legal grounds, believe that a drunk driver who kills should in fact be charged with murder.

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August 19, 2010

Is Rhode Island #1 for Drunk Driving Auto Accident Fatalities?

Democratic candidate for Attorney General, Steven Archambault, stated during a debate last night that he has a "four-point" plan for dealing with the drunk driving problem in Rhode Island. Archambault is calling for stiffer penalties particularly for second and third offenders or those whose blood alcohol level is very high. The increased penalties mean that those convicted of DUI in RI could face longer prison sentences or longer suspensions of their license.

Archambault, rightfully, commented that this State should not be at the top of the Country for alcohol related auto accident deaths. His statement led the Providence Journal to investigate the accuracy of the statement, and to his credit, Rhode Island ranks very high in drunk driving related auto fatalities. In fact, Rhode Island ranks fifth in the Nation for auto accident fatalities caused by a driver with a blood alcohol level over the legal limit of .08.

Rhode Island suffered 69 driving fatalities in 2008 (the year of the PROJO report) of which thirty-eight were caused by a legally drunk driver. That is nearly forty percent of all auto fatalities! While our rank has bounced around over the years, it is always quite high and in the top 10. For 2003 and 2004, Rhode Island had the worst record for alcohol related auto fatalities. A dubious distinction to be sure!

I will be curious to see if the other Attorney General candidates will take a similar tough stance against DUI given these statistics.

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July 20, 2010

Massachusetts Police Union Seeking to Limit Drunk Driving

It has been an exceptionally difficult month for Massachusetts State troopers. In the past five weeks alone, five state troopers have been injured on duty by drunk drivers. In one case, Sgt. Doug Weddleton was killed in an accident caused by a drunk driver. In the most recent incident, a thirty-three year old Massachusetts trooper was injured while writing a ticket for an uninvolved Brockton woman, Fatima Baptista.

In light of this increased string of drunk driving incidents, the Massachusetts Police Union is seeking extra patrols on the roads to identify impaired drivers before they cause injury. The union believes that more patrols will increase drunk driving arrests and keep dangerous drivers off the road.

It is important to remember that .08 is not a very high standard for DUI, but it is the law in Rhode Island and Massachusetts. Even a few drinks can impair your ability to drive and subject you to arrest for drunk driving. Additional penalties will be added to your case if you injury, or God forbid, kill someone while operating under the influence.

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June 10, 2010

400 DUI Convcitions Based on Flawed Testing

Washington, D.C. is reporting that nearly 400 people convicted of drunk driving since 2008 may have been convicted with inaccurate breathalyzer results. Half of those convicted spent time in jail, perhaps unnecessarily. D.C. Attorney General, Peter Nickles, said that the machines were improperly calibrated by the police. The inaccurate calibration led to results that were up to 20% higher than the actual blood alcohol level. Such a mistake could have resulted in wrongful convictions or may have wrongfully earned a more severe sentence under the wrong belief that a person was highly intoxicated.

Requests for new trials, expungements, and even lawsuits against the District have already begun pouring in. Some of the verdicts will stand based on other, still useful, evidence such as police testimony or subsequent blood and urine testing. Nevertheless, other cases may need to be re-tried without the inaccurate breathalyzer results.

These machines require precise calibration and proper care and maintenance at all times in order to give an accurate blood alcohol reading. A good DUI lawyer will challenge the accuracy and validity of test results to try and remove the results from evidence. This story will add fuel to the debate that these tests too often produce inaccurate results.

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May 1, 2010

Will New Jersey Allow Drunk Drivers to Sue the Bars That Served Them?

I found this interesting article on the legal blog watch. Following my recent post about the Red Room and liquor liability, comes news that a New Jersey Appellate Court has now ruled that drunk drivers, injured in an auto accident of their own causing, can now sue the bar or club that served them despite obvious intoxication.

I suspect that such a ruling will be shot down at the Supreme Court level or overturned by the legislature, not necessarily because the reasoning is flawed, but because public policy demands it. In fact, the ruling is already in conflict with a New Jersey law that states a driver convicted of DUI shall have no cause of action over his or her injuries. A reading of the decision shows that the Court gave greater weight to the Dram Shop Act than to the above stated law. The NJ Dram Shop Act, similar to our own, indicates that ANYONE injured as a result of the negligent service of alcohol may have an action against the licensed provider of that alcohol. The New Jersey Appellate Court reasoned that there is no bar to ANYONE including the drunk driver.

Drunk drivers are often vilified because it is well known that it is a reckless and dangerous activity that puts peoples lives at risk. This is indisputable. Unfortunately, one of the effects of alcohol is to reduce our ability to reason and use proper judgment. Isn't it reasonable, therefore, to hold the negligent server of alcohol responsible since they profit heavily from increased intoxication. Please know that I am only playing devil's advocate here, and I understand that a reasonable person would cut himself off before he gets to a point in which he can no longer drive.

I found this ruling interesting. It expands the scope of the Dram Shop Act, and I believe rightfully so. That is not to say that drunk drivers should be awarded for their reckless behavior, but a licensed vendor of liquor, an intoxicating and dangerous drug, needs to be more carefully regulated and held responsible when they place profits over safety. Again, I imagine that this ruling will be overturned for public policy reasons - but it is interesting nonetheless.


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December 4, 2009

Warwick to Charge Federal Prosecutor With DUI

Early Thanksgiving morning, Assistant U.S. Attorney, Gerard Sullivan, was stopped by Warwick police for driving erratically. Allegedly, Mr. Sullivan told the police that he was a federal prosecutor and acquaintance of the police chief. Instead of being charged with DUI, Mr. Sullivan was charged only with refusal to take a breathalyzer, a lesser civil charge.

Typically, an officer will charge a suspected drunk driver with DUI based on the surrounding circumstances (i.e. erratic driving, slurred speech, smell of alcohol and/or weed), even absent a positive breathalyzer test. The public was outraged over the lack of the more serious charge suggesting this was another case of favortism and cronyism. In fact, of 8 people stopped in Warwick over the Holiday weekend who refused a breathalyzer, Mr. Sullivan was the only person NOT charged with DUI.

Today, the Providence Journal is reporting, that Warwick will charge Mr. Sullivan with both refusal to take a breathalyzer and DUI. Warwick Police Chief Stephen McCartney stated "The legal review showed that the arresting officer's observations of impaired driving in this particular case were more than sufficient probable cause to bring forward the aforementioned additional DUI charge." Whether this was police procedure or a knee-jerk reaction to public outrage is for the public to decide.

It is also worth noting that when a lawyer is pulled over for suspicion of DUI - he (or she) refuses the breathalyzer test. This is a lesson to anyone who might find him or herself in this unfortunate circumstance.

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November 27, 2009

New Rhode Island Law Compels Blood Alcohol Testing

The State legislature has passed a new law that allows officers to force drivers suspected of being under the influence AND are involved in accidents that cause death or serious bodily injury, to submit to a blood alcohol test.

Rhode Island law holds that any driver on a public road gives consent to a breathalyzer test if suspected of DUI. Drivers, however, can refuse to take the test. Refusal to take the breathalyzer will result in a separate charge from the DUI and will result in a loss of license, but may help avoid a DUI conviction.

This new State law denies the driver's right to refusal when the suspected DUI has led to an accident involving serious bodily injury or death. The law will really aid the prosecution for the heightened charges of R.I.G.L. 31-27-2.2 "driving under the influence of liquor or drugs, resulting in death."

I will be curious to see where the fine line is drawn in regards to "serious bodily injury." What will it take for an injury to be deemed serious enough to give the officer power to force the suspected drunk driver to submit to the chemical test. I am willing to bet that this will be the subject of much litigation in the coming years.

Rhode Island legislators are happy to have this law passed in time for the Thanksgiving weekend when a higher percentage of drunk drivers are on the road. Everyone be careful out there this weekend.

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