51 RI Bar J., No. 2, Pg. 21 (September, 2002). Prosecution of a DUI Observations Case in Rhode Island.

• Author: Guy R. Bissonnette, ESQ.

Rhode Island Bar Journal

Volume 51.

51 RI Bar J., No. 2, Pg. 21 (September, 2002).

Prosecution of a DUI Observations Case in Rhode Island

Prosecution of a DUI Observations Case in Rhode IslandGuy R. Bissonnette, ESQ.Guy R. Bissonnette is currently an Assistant Professor of Legal Studies, Center for Legal Studies, at Johnson & Wales University. He has practiced law in Rhode Island since 1977 and maintains an office in Warwick, Rhode Island. From January, 1997 through August of 2001, he held the position of Assistant Town Solicitor for the Town of Portsmouth.Can you try an "Observations Case" in Rhode Island?Before breathalyzer machines and blood tests, police officers had to rely on their personal observations to prosecute drunk drivers. "Observations" included, among other things, what the officers saw of the driver's operation of the vehicle, the odor of alcohol on the breath of the driver, blood shot eyes, slurred speech, and of course field sobriety tests. See State v. DiCicco, 707 A.2d 251 (R.I. 1998). The various amendments to R.I. Gen. Laws § 31-27-2 over the years have generally reflected the changes in technology, by adding references to, and validating, modern testing methodology. We now accept and endorse breathalyzer machine and blood results as accurate and reliable when the Department of Health regulations governing the administration of these tests are followed. In all of its incantations, however, § 31-27-2 has continuously preserved the option of proving a "drunk driving case" through the tried and true method of police observations. DiCicco, supra: a necessity when confronted with an impaired driver who has refused to take a chemical test. In "refusal cases" the only method open to the police, to prove that a driver was driving while impaired, is through "observation" testimony. This is preserved in § 31-27-2(b)(1) which reads in part:

(b)(1)...this provision shall not preclude a conviction based on other admissible evidence. Proof of guilt under this section may also be based on evidence that the person charged was under the influence of intoxicating liquor...or any controlled substance...to a degree which rendered such person incapable of safely operating a vehicle...That is until the recent changes to the statute in July of 2000.

In the 2000 session the Rhode Island Legislature once again amended § 31-27-2. The effort this time was to deal with the issue of drivers whose "blood alcohol content" (BAC) was between .08 and .10. Prior to these changes the presumptive threshold limit for prosecution was essentially .10. (fn1) See State v. Lussier, 511 A.2d 958, 960...