Articles Posted in DUI

Between our auto accident inquiries and my criminal law partner, Richard James, inquiries for moving violations and other vehicle related crimes/tickets, we sometimes get accident scenarios where the client looks at fault or clients seriously injured in car accidents but were given a citation or even arrested for reckless driving.  When this happens, and it has happened quite a bit recently, we always separate the parts of the case and attack them individually.  Then we see what happens.  Sometimes, as with the cases below, we can turn lemons into lemonades.


Rich signed up a client who was charged with misdemeanor reckless driving and multiple moving citations following a very serious auto accident on Route 95 near Westerly.  He was very badly injured in the accident including an airlift by rescue with multiple fractures and a collapsed lung.  The police completed an accident reconstruction but in so doing jumped to conclusions and used junk science to show our client was speeding and driving recklessly.  We retained our expert witness, an accident deconstructionist, who was able to prove that the science the police used during their reconstruction was completely false.  With his help we were also able to show that while our client was driving too fast, the accident was caused because the other vehicle changed lanes, sideswiping our client and causing him to lose control of his vehicle.  Even though the police report was completely against our client we were successful in reducing the charges against him and able to obtain a personal injury settlement against the driver of the other vehicle involved in the crash.

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.

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.

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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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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!

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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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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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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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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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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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