57 RI Bar J., No. 6, Pg 19. How to Handle Your First DWI/Refusal Case.

• Author: Richard S. Humphrey, Esq., Stefanie A. Murphy, Esq., and Katherine M. McGinn, Esq. All practice at the Law Offices of Richard S. Humphrey, Tiverton.

Rhode Island Bar Journal

Volume 57.

57 RI Bar J., No. 6, Pg 19.

How to Handle Your First DWI/Refusal Case

Rhode Island Bar Journal57 RI Bar J., No. 6, Pg 19May/June 2009How to Handle Your First DWI/Refusal CaseRichard S. Humphrey, Esq., Stefanie A. Murphy, Esq., and Katherine M. McGinn, Esq. All practice at the Law Offices of Richard S. Humphrey, Tiverton.You have recently been admitted to the practice of law. Your neighbor has been arrested and charged with Driving While Intoxicated (DWI) - first offense, criminal, and refusal to submit to a chemical test - first offense, civil. The DWI charge will be heard in the Rhode Island District Court. The refusal charge will be heard in the Rhode Island Traffic Tribunal. You are now wondering how you can prepare to accept your new responsibility as defense counsel. First, you should know that the defense bar is a collegial bar and advice is freely and readily given. Therefore, you may want to consider contacting an experienced defense attorney and ask him or her for assistance. At our office, we routinely review police reports for other attorneys and provide advice and suggestions. We are, after all, members of a wonderful profession and we all seek to enhance the professionalism of the bar.

Discovery

DWI cases often include evidence in the form of witness statements, anonymous tips, camera surveillance, scientific evidence (i.e., chemical, blood and other test results) and opinion evidence. In order to do your job properly, you need to get as much information as quickly as possible.

A sample District Court Demand for Discovery and Inspection (Exhibit A) appears at the end of this article. Although the sample Demand goes beyond the scope of Rule 16, we have found the police and the Court are often receptive to reasonable requests that go beyond the Rule. The Demand should be submitted to the court, the prosecuting attorney and the police department as soon as possible. Upon your first appearance at court (either at the arraignment or at the pre-trial conference), if you have not received the police report, you should immediately move to compel the production of the police report and related papers within five (5) days. Your motion should, preferably, be in writing, but it can be an oral motion. You should have a written order prepared for the Judge's signature. Remember, these are expedited cases and you need information as quickly as possible.

In light of the fact that your client has also been charged with refusal, you will need to file a separate motion for discovery/discovery demand, which is different from the District Court demand. This should be sent to the Rhode Island Traffic Tribunal, the Department of Attorney General's Breathalyzer Refusal Section and the police department. The police and the court are often receptive to reasonable requests that go beyond the information set forth in Rule 11. At your first appearance in court, you should immediately try to get the discovery as quickly as possible. A sample copy of a Rhode Island Traffic Tribunal Demand for Discovery and Inspection (Exhibit B) appears at the end of this article.

Among the most objective pieces of evidence in all these cases are police audio and visual recordings. The police often utilize dashboard-mounted cameras in their cruisers and also often videotape the motorist while he/she is in the booking room. You should obtain all recordings as soon as possible. A sample demand letter (Exhibit C), including a request for all videotapes, CDs, DVDs, and other recordings appears at the end of this article.

Your Independent Investigation

Upon receipt of the police reports and recordings, your job is not over. In fact, it has just begun. You now must become familiar with the National Highway Traffic Safety Administration's Student and Instructional manuals on the proper administration of field sobriety tests. Additionally, you should contact the Department of Health's (DOH) Breath Analysis Division to get the certification of the breath testing operator, the breathalyzer machine and any repair records. A sample letter to the DOH (Exhibit D) appears at the end of this article.

Aerial photographs have long been a favorite of our law firm, and now you can obtain them through the Internet. Maps and charts are also helpful.

Please note that under the Rhode Island Traffic Tribunal rules, you can depose the arresting officer. The deposition notice should be sent to the court, to the Department of Attorney General and to the stenographer. A sample Notice of Deposition (Exhibit E) appears at the end of this article.

Because some police reports sound remarkably similar, your office should create a file of all reports prepared by each particular officer.

You should also feel free to contact the police department and ask if you can visit the booking room to determine the location of the breathalyzer machine, the availability of a confidential telephone call and other related evidence.

We hope that you find the following forms helpful. Please call us if we can be of assistance.

Related forms, listed as Exhibits A-E, appear on following pages.

EXHIBIT A

STATE OF RHODE ISLANDPROVIDENCE, SC.DISTRICT COURT ________________ DIVISIONCriminal No.: 61-2008-0000Summons No.: 08 000 000000STATE OF RHODE ISLANDex re TOWN OF __________________vs.ANYONEDEFENDANT'S DEMAND FOR DISCOVERY AND INSPECTION(fn1)

PLEASE TAKE NOTICE that the above-named defendant demands permission to inspect or listen to, and copy or photograph, any of the following items within the possession, custody, or control of the State, the existence of which is known, or by the exercise of due diligence may become known to the attorney for the State:

1. All relevant written or recorded statements or confessions, signed or unsigned, or written summaries of oral statements or confessions, made by the defendant, or copies thereof.

2. All relevant recorded testimony before a grand jury of the defendant, or in the case of a corporate defendant, of any present or former officer or employee of the defendant corporation concerning activities carried on, or knowledge acquired, within the scope of or reasonably relating to his or her employment.

3. All written or recorded statements or confessions which were made by a co-defendant who is to be tried together with the moving defendant and which the State intends to offer in evidence at the trial, and written summaries of oral statements or confessions of such a co-defendant in the event the State intends at the trial to offer evidence of such oral statement or confessions.

4. All books, papers, documents, photographs, sound recordings, or copies thereof, or tangible objects, buildings, or places which are intended for use by the State as evidence at the trial or were obtained from or belong to the defendant.

5. All results or reports in writing, or copies thereof, of physical or mental examinations, and of...