“A majority of DUI and DWI arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect’s conduct by the arresting officer.”

With respect to a Rhode Island DUI, DWI, driving under the influence, or drunk driving prosecution, a majority of arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect’s conduct by the arresting officer. This raises the constitutional issue, in nearly every case, of whether probable cause existed for the arrest. If probable cause to arrest did not exist when the police initially stopped the suspect, an illegal arrest was made and all evidence gained after the arrest would be inadmissible. While probable cause to arrest is rather apparent when a suspect was driving recklessly and a strong smell of alcohol on his breath was evident to the officer or the suspect got out of the automobile with a bottle of liquor in his hand, probable cause is not so apparent where an individual is stopped for a routine driver’s license check or similar reason, and the officers smell alcoholic odors but do not detect further evidence of drunkenness. State courts divide on the question of probable cause to make an arrest under the latter fact situation. A Rhode Island criminal defense lawyer will generally analyze probable cause before they review other issues in the DUI or DWI case.

Currently, traffic safety proponents are urging that a police officer be authorized by statute to make a misdemeanor arrest for driving while intoxicated where the crime was not committed in his presence but where, after personal investigation, he finds reasonable grounds to believe that the person did commit the offense. These traffic safety people believe that such increased authority in the area of arrest would be helpful in the investigation of traffic accidents in which it is apparent that one driver was intoxicated but where the officer did not observe the accident.

In a few cases, a charge for driving while intoxicated may be filed solely on the basis of the complaint of a private citizen, and the police fear that the suspect is about to flee the jurisdiction. In these situations, whether a warrant must be issued to make a misdemeanor arrest, or whether the police may make a felony arrest without a warrant on the ground that there is insufficient time to secure a warrant depends on whether the suspect is still intoxicated at the time he is approached by the police. Of course, if some action occurs in their presence that gives them probable cause to stop him, the police may make a valid arrest without a warrant. However, if the suspect is not still intoxicated, and the police are not certain that a felony is involved, a warrant must be secured unless one of the police officers knows of previous convictions of the suspect that would raise the instant offense to a felony level. Consider the following cases:

“How recent interpretations of Confrontation Clause and hearsay rules will impact admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…”

The following case reflects how recent interpretations of the Confrontation Clause and well settled hearsay rules will impact the admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…

Court of Appeals of Virginia,
Richmond.
Phillip Lawton GRANT  v.  COMMONWEALTH of Virginia.
Record No. 0877-08-4.
Sept. 1, 2009.

Background: Defendant was convicted in the Circuit Court, Fairfax County, Bruce D. White, J., of driving while intoxicated. Defendant appealed.

Holdings: The Court of Appeals, Petty, J., held that:

(1) attestation clause in certificate memorializing the results of a blood test was testimonial in nature, and its admission violated the Confrontation Clause, and
(2) admission of certificate in violation of Confrontation Clause was not harmless error, and required reversal.

Reversed and remanded.

Present: FELTON, C.J., and FRANK and PETTY, JJ.
PETTY, Judge.

*716 Appellant, Phillip Lawton Grant, challenges his conviction for driving while intoxicated, in violation of Code § 18.2-266. Grant argues that his conviction should be reversed because the certificate of the results of a chemical analysis of his breath indicating his blood alcohol level was admitted into evidence in violation of his Sixth Amendment right to confront witnesses against him.FN1 **86 For the reasons explained below, we agree with Grant and reverse his conviction.

FN1. Grant’s question presented on appeal is:

Whether the trial court erred by denying appellant’s motion to exclude from evidence, or alternatively to strike from evidence, the certificate of analysis because the Commonwealth failed to comply with appellant’s timely “Notice of Defendant’s Exercise of Confrontation Rights Pursuant to Va.Code 19.2-187.1.”

While both parties argued that the statutes governing the admissibility of the breath test certificate are Code §§ 19.2-187 and 19.2-187.1, the express statutory authority for the admission of a breath test certificate is set out in Code § 18.2-268.9.Code § 19.2-187 is limited to certificates of analysis prepared by the Division of Consolidated Laboratory Services, the Department of Forensic Science, and certain other enumerated laboratories. Further, Code § 19.2-187.1 only provides for a right by the defendant to examine persons performing analysis pursuant to Code § 19.2-187. It does not appear that the Fairfax County Adult Detention Center is one of the laboratories enumerated in Code § 19.2-187. However, whether the parties and the trial court relied upon the correct statutory scheme addressing the admissibility of the breath test certificate is not before us in this appeal. Therefore, we assume without deciding for the purposes of this opinion that Code § 19.2-187.1 is applicable to this case.

*717 I. Background

Pursuant to Rule 5A:8(c), the parties presented an agreed statement of facts, in lieu of a transcript, of the trial court proceedings. We draw this summary of the facts and incidents of trial from that statement. In accord with our usual standard of review, we view the evidence and all reasonable inferences flowing from the evidence in a light most favorable to the Commonwealth as the party prevailing in the trial court. Garcia v. Commonwealth, 40 Va.App. 184, 189, 578 S.E.2d 97, 99 (2003).

On June 30, 2007, Grant was involved in a minor traffic accident. Approximately five minutes after the accident, Officer Wolfe arrived to investigate. Officer Wolfe testified at trial that he noticed the odor of alcohol on Grant’s breath as they interacted and that Grant’s eyes were bloodshot. Grant admitted to Officer Wolfe that he had consumed “a couple of beers” over an hour earlier. Officer Wolfe then asked Grant to perform some field sobriety tests, which Grant agreed to do. Grant successfully performed the “one-legged stand,” although he did become confused when counting the number of seconds he stood on one leg, and performed the “walk-and-turn test,” staggering once. Grant also had some difficulty in *718 reciting the alphabet. At that point, Officer Wolfe asked Grant to take a preliminary breath test. Grant refused to do so.

Based upon these circumstances, Officer Wolfe arrested Grant for driving while intoxicated. The officer took Grant to the Fairfax County Adult Detention Center (“ADC”). After arriving at the ADC, the officer read Grant the implied consent statute, and Grant agreed to provide a sample of his breath in order to determine his blood alcohol concentration (“BAC”) by blowing into the Intoxilyzer 5000 machine located at the ADC. According to the certificate of blood alcohol analysis (“certificate”), Grant’s BAC at the time of the test was 0.11 grams per 210 liters of breath.

Over two months prior to his circuit court trial, Grant filed a “Notice of Defendant’s Exercise of Confrontation Rights Pursuant to Va.Code § 19.2-187.1.” The notice stated the following:

The Defendant, Mr. Grant, pursuant to Virginia Code 19.2-187.1, the 6th and 14th Amendments to the United States Constitution, Article I § 8 of the Virginia Constitution, Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and Brooks v. Commonwealth, 49 Va.App. 155, 638 S.E.2d 131 (2006), hereby notifies the Commonwealth of Virginia that he does not stipulate to the admissibility of the contents of any properly filed certificates of analysis in this case. Mr. Grant further notifies the Commonwealth that he desires that the preparer of the certificate, including persons having personal knowledge of information attested to in the certificate, be summoned by the Commonwealth to appear at trial … at the cost of the Commonwealth to be cross-examined in this matter.

(Emphasis added).

The Commonwealth did not call the breath test operator as a witness at trial. Instead, it relied on the testimony of Officer Wolfe. He testified that he observed Grant for the required twenty-minute time period and that Grant “then blew into the Intoxilyzer 5000 machine. The machine determined *719 that [Grant's] blood alcohol concentration … was 0.11.” The Commonwealth then offered the certificate into evidence. Grant objected, arguing that the certificate should be excluded because the Commonwealth did not summon the person who prepared the certificate to be cross-examined at trial. The trial court overruled Grant’s objection and ruled that the certificate was admissible. The trial court held that under Code § 19.2-187.1 the defense must subpoena the breath test operator, even though the statute provides that the cost of bringing the witness be paid by the Commonwealth. Thus, the trial court concluded that Grant had not complied withCode § 19.2-187.1 because he had not subpoenaed the breath test operator to testify to the contents of the certificate.

The trial court found Grant guilty of driving while intoxicated, and this appeal followed. During the pendency of this appeal, **87 the United States Supreme Court decided Melendez-Diaz v. Massachusetts, — U.S. —-, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), holding that certificates of analysis are testimonial statements, and, “[a]bsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the analysts at trial.” Id. at —-, 129 S.Ct. at 2532 (quoting Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 1365-66, 158 L.Ed.2d 177 (2004)). After the Court released its opinion, we ordered the parties to submit supplemental briefs addressing the effect of the Melendez-Diaz decision on this case.

II. Analysis

A. Admissibility of the Certificate of Analysis FN2

FN2. Grant acknowledges that this Court has held that the results of a breath test as recorded in a certificate of analysis are not testimonial hearsay because the Intoxilyzer 5000 machine is not a witness. See Wimbish v. Commonwealth, 51 Va.App. 474, 482-84, 658 S.E.2d 715, 719-20 (2008). Instead, Grant argues that the contents of the attestation clause on the certificate of analysis are testimonial and subject to confrontation. He reasons that in the absence of the confrontation, the certificate of analysis itself is inadmissible.

The Commonwealth conceded in its supplemental brief that *720 the contents of the attestation clause FN3contained in the certificate are testimonial in nature, based upon the United States Supreme Court’s decision in Melendez-Diaz. The Commonwealth also conceded that Grant’s notice pursuant to Code § 19.2-187.1complied with the requirements of that statute as it was construed in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008), cert. granted sub nom. Briscoe v. Virginia, — U.S. —-, 129 S.Ct. 2858, 174 L.Ed.2d 600 (2009). While we are not obliged to accept the Commonwealth’s concession of legal error, seeCopeland v. Commonwealth, 52 Va.App. 529, 531, 664 S.E.2d 528, 529 (2008), we agree with the Commonwealth in this case: the attestation clause is testimonial under the holding of Melendez-Diaz,FN4and Grant complied with the requirements of Code § 19.2-187.1.

FN3. The attestation clause states, in pertinent part:

I certify that the above is an accurate record of the test conducted; that the test was conducted with the type of equipment and in accordance with the methods approved by the department’s specifications; that the equipment on which the breath test was conducted has been tested within the past six months and found to be accurate; that prior to administration of the test the accused was advised of his right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test; and that I possess a valid license to conduct such test….

FN4. We note that this case is very different from Wimbish, 51 Va.App. 474, 658 S.E.2d 715, where we rejected a Crawford challenge to the admission of, inter alia, the attestation clause on a certificate of analysis. In Wimbish the person who prepared the breath test certificate, including the attestation clause, testified and was subject to cross-examination by the defendant.

Melendez-Diaz is the latest in the Supreme Court’s recent line of cases regarding the right of a criminal defendant to confront the witnesses against him, as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. — U.S. at —- – —-, 129 S.Ct. at 2531-32. In Melendez-Diaz, the Court held that the contents of the certificates of analysis at issue were testimonial in nature in accordance with its earlier decision in *721 Crawford, 541 U.S. at 36, 124 S.Ct. at 1355. Id. at —-, 129 S.Ct. at 2532. Thus, the analysts whose conclusions were memorialized in the certificates were “ ‘witnesses’ for the purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that the [defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to ‘be confronted with’ the analysts at trial.” Id. (quoting Crawford, 541 U.S. at 54, 124 S.Ct. at 1365) (emphasis in original).

The certificates of analysis at issue in Melendez-Diaz recited the results of a laboratory analysis of material that the laboratory concluded was cocaine. — U.S. at —-, 129 S.Ct. at 2531. These certificates “were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law.” Id. (citation omitted). The Supreme Court concluded that “the documents at issue in this case fall within the ‘core class of testimonial **88 statements’…. The documents at issue here, while denominated by Massachusetts law ‘certificates,’ are quite plainly affidavits: ‘declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.’ ” Id. at —-, 129 S.Ct. at 2532 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. at 1364;Black’s Law Dictionary 62 (8th ed.2004)). The Court went on to explain that the certificates existed to prove that “the substance found in the possession of Melendez-Diaz … was, as the prosecution claimed, cocaine-the precise testimony the analysts would be expected to provide if called at trial.” Id. Thus, the Supreme Court reasoned, “[t]he ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ ” Id. (quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 2278-79, 165 L.Ed.2d 224 (2006)).

Virginia law does not require that certificates of blood alcohol analysis be sworn to before a notary public. The law does, however, require that the preparer of the certificate memorializing the results of a chemical analysis of a person’s breath for the purposes of prosecution under Code § 18.2-266 sign an attestation clause confirming the accuracy of the test *722 and that the test was conducted pursuant to the regulations of the Department of Forensic Science. Code § 18.2-268.9. Grant argues that this attestation clause is testimonial and that the trial court’s failure to subject the preparer of the clause to cross-examination rendered the certificate inadmissible.

The first paragraph of Code § 18.2-268.9-the statute that governs the use of breath-test results as evidence in criminal trials-sets forth factual predicates that must be met before breath-test results are “capable of being considered valid as evidence in a criminal trial.” The statute requires that:

[The] chemical analysis of a person’s breath shall be performed by an individual possessing a valid license to conduct such tests, with a type of equipment and in accordance with methods approved by the Department [of Forensic Science]. The Department shall test the accuracy of the breath-testing equipment at least once every six months.

The second paragraph of Code § 18.2-268.9 then goes on to require that the individual who prepares the certificate attest to his or her fulfillment of the prerequisites set forth in the first paragraph of the statute:

Any individual conducting a breath test … shall issue a certificate which will indicate that the test was conducted in accordance with the Department’s specifications, the equipment on which the breath test was conducted has been tested within the past six months and has been found to be accurate, the name of the accused, that prior to administration of the test the accused was advised of his right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test, the date and time the sample was taken from the accused, the sample’s alcohol content, and the name of the person who examined the sample. This certificate, when attested by the individual conducting the breath test, shall be admissible in any court in any criminal or civil proceeding as evidence of the facts therein stated and of the results of such analysis.

*723 (Emphasis added). It is clear from the plain language of the statute that the General Assembly intended that the certificates be self-proving. The word “attest” means: “To bear witness; testify; to affirm to be true or genuine; to authenticate by signing as a witness.” Black’s Law Dictionary 147 (9th ed.2009) (emphasis added). Moreover, Code § 18.2-268.9 provides that the evidence proving the statutory predicates governing both the reliability (first paragraph) and admissibility (second paragraph) of the facts contained in the certificate is provided in the attestation clause of the certificate, thus eliminating the need for the live, in-court testimony of a breath-test operator. Thus, the attestation clause on the certificate of analysis in this case was designed to be used exactly like the certificate at issue in Melendez-Diaz-to prove facts essential to the prosecution that would otherwise have to be proved by live, in-court testimony: that the breath test was administered by a licensed **89 operator in accordance with Code § 18.2-268.9.

[1] [2] However, the United States Supreme Court’s recent decision in Melendez-Diaz invalidates this method of introducing evidence. Although the Court clarified that it did “not hold, and it is not the case, that anyone whose testimony may be relevant in establishing … the … accuracy of the testing device, must appear in person as part of the prosecution’s case … [,] what testimony is introduced must (if the defendant objects) be introduced live.” — U.S. at —- n. 1, 129 S.Ct. at 2532 n. 1 (emphasis in original). Thus, while there is no constitutional requirement that the factual predicates in Code § 18.2-268.9 be established prior to the admission of the results of the test, once the General Assembly conditions the validity and admissibility of the breath-test results on the proof of those facts, the Commonwealth must prove those facts through live, in-court testimony and not by affidavit. Accordingly, we hold that the attestation clause included in the certificate is testimonial in nature and its admission, over the objection of Grant, constitutes a violation of the Confrontation Clause.

*724 We also agree with the Commonwealth that Grant complied with the requirements of Code § 19.2-187.1 and did not waive his right to confront the person who prepared the certificate. In Magruder, our Supreme Court clarified that a criminal defendant could “insur[e] the physical presence of the forensic analysts at trial” under Code § 19.2-187.1 “by issuing summons for their appearance at the Commonwealth’s cost, or asking the trial court or Commonwealth to do so.” Magruder, 275 Va. at 298, 657 S.E.2d at 120-21 (emphasis added). Here, Grant notified the Commonwealth “that he desire[d] that the preparer of the certificate … be summoned by the Commonwealth to appear at trial … at the cost of the Commonwealth to be cross-examined in this matter.” (Emphasis added). Grant did what our Supreme Court instructed in Magruder, and, accordingly preserved his right to confront the preparer of the certificate.

B. Harmless Error

The Commonwealth argues, however, that even if the trial court erred in admitting the certificate, that error was harmless because there was sufficient evidence produced below to prove that Grant was guilty of driving while intoxicated. We disagree.

[3] [4] [5] The standard for constitutional harmless error is well settled. “ ‘When a federal constitutional error is involved, a reversal is required unless the reviewing court determines that the error is harmless beyond a reasonable doubt.’ ” Pitt v. Commonwealth, 260 Va. 692, 695, 539 S.E.2d 77, 78 (2000) (quotingChapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)). In order to determine whether the error was harmless beyond a reasonable doubt, we must ask “ ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Id. (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963)) (emphasis in original). Finally, “the original common-law harmless error rule [places] the burden on the beneficiary of the error either to prove or disprove that there was no injury or to suffer a *725 reversal of his erroneously obtained judgment.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828; see also Lugar v. Commonwealth, 214 Va. 609, 630-31, 202 S.E.2d 894, 910 (1974) (Poff, J., concurring) (“[W]hen … on appeal, the Commonwealth argues [that evidence admitted in violation of a constitutional right was] ‘harmless error,’ the burden is on the Commonwealth to convince us beyond a reasonable doubt that the erroneous admission of evidence was harmless.”).

According to the misdemeanor warrant in this case, Grant was charged with driving or operating a motor vehicle while having a blood alcohol concentration of 0.08 grams or more per 210 liters of breath, or while under the influence of alcohol. See Code § 18.2-266. Accordingly, the Commonwealth could prove the charges against Grant by (i) showing that he had the requisite blood alcohol level, or (ii) by presenting other evidence, including evidence of his blood alcohol level, which would establish that he was driving **90 under the influence of alcohol.FN5 According to the statement of facts, the Commonwealth relied on all of the circumstances of the case in its closing argument, including the 0.11 blood alcohol concentration.

FN5. “If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused’s blood or 0.08 grams or more per 210 liters of the accused’s breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense.” Code § 18.2-269(A)(3).

[6] As discussed above, the attestation clause on the certificate showing a blood alcohol level of 0.11 grams per 210 liters of breath was erroneously admitted in this case. Accordingly, we must determine the importance of this error in light of the rest of the Commonwealth’s case. In making this determination, we “must consider, among other factors, ‘the importance of the tainted evidence in the prosecution’s case, whether that evidence was cumulative, the presence or absence of evidence corroborating or contradicting the tainted evidence on material points, and the overall strength of the prosecution’s case.’ ” *726 Zektaw v. Commonwealth, 278 Va. 127, 140, 677 S.E.2d 49, 56 (2009) (quoting Pitt, 260 Va. at 695, 539 S.E.2d at 78).

1. Officer Wolfe’s Testimony as to the Contents of the Certificate

[7] The Commonwealth contends the erroneous admission of the certificate constitutes harmless error. It reasons that Officer Wolfe’s testimony that the result of the Intoxilyzer 5000 breath test, which he witnessed, but did not administer, was “0.11” is sufficient to support Grant’s conviction.FN6 However, this testimony did not establish that Grant’s BAC was 0.08 grams or more per 210 liters of breath, as required by Code § 18.2-266(i). The mere statement that Grant’s blood alcohol concentration was “0.11” was insufficient to establish that Grant’s blood alcohol content exceeded the per se prohibition of Code § 18.2-266(i) (0.08 grams or more per 210 liters of breath) or to invoke the legal presumption of intoxication provided by Code § 18.2-269.FN7 The only evidence that put the officer’s testimony in context was the inadmissible breath *727 certificate. Accordingly, we are unable to say, beyond a reasonable doubt, that the facts contained in the certificate played no role in the trial court’s verdict.

FN6. In his supplemental brief, Grant argues that the statement of facts is “ambiguous on the point of whether Officer Wolfe testified about the results of the breath analysis. The Statement of Facts is inartfully drafted and unclear throughout the section regarding Officer Wolfe’s testimony.” The pertinent portion of the statement of facts is included in a section that begins, “When direct examination of Officer Wolfe continued, he testified as follows.” Accordingly, we fail to see any ambiguity. However, we note that if Grant had concerns regarding the wording of the statement of facts, Rule 5A:8(d) provides a procedure for objecting to the content of the statement of facts that Grant failed to employ.

FN7. Code § 18.2-269(A) states, in pertinent part:

In any prosecution for a violation of … clause (ii) … of § 18.2-266, … the amount of alcohol or drugs in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of the accused’s blood or breath to determine the alcohol or drug content of his blood in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions:
* * * * * *

(3) If there was at that time … 0.08 grams or more [by weight by volume of alcohol] per 210 liters of the accused’s breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense[.]

In addition, Code § 18.2-266(i) requires the chemical test used to determine an accused’s blood alcohol content be “administered as provided in this article.” Similarly, Code § 18.2-269 requires that the chemical analysis of the accused’s breath must be prepared “in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12.” In Essex v. Commonwealth, 228 Va. 273, 279, 322 S.E.2d 216, 219 (1984), our Supreme Court held that a blood alcohol content test ordered by an emergency room physician and performed in a hospital, was probative evidence of intoxication in a prosecution under Code § 18.2-266(ii), because it was “ ‘other relevant evidence of the condition of the accused.’ ” 228 Va. at 286, 322 S.E.2d at 223 **91 (quoting Code § 18.2-268(i)).FN8 However, the Court explained, while the evidence of the test results was “competent because supported by a proper foundation,” the evidence “raised no legal presumption of intoxication” because the test was not conducted in accordance with the provisions of the applicable statute. Id. The Court based its holding on the plain language of the statute: “ Code § 18.2-269expressly provides that the presumptions it creates arise only when a blood-alcohol test is conducted ‘in accordance with the provisions*728 of [§§ 18.2-268.1 through 18.2-268.12].’ ” Id. (internal citations omitted) (emphasis added); see also Groggins v. Commonwealth, 34 Va.App. 19, 23, 537 S.E.2d 605, 607 (2000) (“Those presumptions apply only when a blood or breath test is administered pursuant to Code §§ 18.2-268.1 through -268.12.”).

FN8. At the time of the Essex decision, Code § 18.2-268(i) stated, in pertinent part:

In any trial for a violation of § 18.2-266 of the Code … this section shall not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of the blood or breath test or tests, if any, consider such other relevant evidence of the condition of the accused as shall be admissible in evidence.

The General Assembly repealed Code § 18.2-268, and replaced it with Code §§ 18.2-268.1 through 18.2-268.12 in 1992. 1992 Va. Acts 1475. Code § 18.2-268.10(A) currently states, in pertinent part:

In any trial for a violation of § 18.2-266 … the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused.

As discussed in part (A) of this opinion, the only evidence that the breath test in this case was administered either “as provided” by Title 18.2, Chapter Seven, Article Two of the Virginia Code or “in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12” is in the attestation clause on the certificate of analysis. Because the use of the attestation clause in this case violated the Confrontation Clause, it cannot be used to prove that the breath test was administered in accordance with the relevant statutes. Thus, in order to convict Grant of a per se violation under Code § 18.2-266(i) or invoke the presumption of intoxication afforded by Code § 18.2-269(A)(3) the trial court must have relied on the facts recited in the attestation clause in order to conclude that the test was conducted in accordance with the relevant statutes. Therefore, we again cannot say with confidence that the admission of the certificate was harmless beyond a reasonable doubt.

2. Other Evidence of Intoxication

The Commonwealth also argues that Officer Wolfe’s testimony regarding Grant’s appearance and performance of field sobriety tests is sufficient to support Grant’s conviction. We disagree.

In Bristol v. Commonwealth, 272 Va. 568, 636 S.E.2d 460 (2006), our Supreme Court held that a certificate memorializing the results of a blood test administered pursuant to Code § 18.2-268.2 was admitted into evidence in error because the appellant was not arrested within three hours of the offense, as required by Code § 18.2-268.2(A). 272 Va. at 575, 636 S.E.2d at 464. The Court rejected the Commonwealth’s “contention that the erroneous admission of [the appellant's] blood test result was harmless error.” Id. Because our Supreme *729 Court believed that “[i]t [was] probable that the circuit court, as the trier of fact, attached great weight to the information contained in the certificate[,]” it declined to “reach the issue whether the other evidence of intoxication, apart from the certificate of analysis, is sufficient to sustain [the appellant's] convictions.” Id.

Both this case and Bristol involved the determination of whether the erroneous admission of a certificate of analysis was harmless error in a driving while intoxicated case. In Bristol, however, our Supreme Court applied the lesser standard of non-constitutional harmless error because the error there was statutory. SeeLavinder v. Commonwealth, 12 Va.App. 1003, 1005-06, 407 S.E.2d 910, 911 (1991) (en banc) (“In Virginia, non-constitutional error is harmless ‘when it plainly appears from the record and the evidence given at trial that the parties have **92 had a fair trial on the merits and substantial justice has been reached.’ ” (quoting Code § 8.01-678) (emphasis in original)). Here, however, we must apply the more stringent standard of constitutional harmless error. See id. at 1006, 407 S.E.2d at 911 (“Constitutional error, on the other hand, is harmless only when the reviewing court is ‘able to declare a belief that it was harmless beyond a reasonable doubt.’ ” (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828)). This case, like Bristol,lacks overwhelming physical evidence of intoxication. See also Castillo v. Commonwealth, 21 Va.App. 482, 490, 465 S.E.2d 146, 150 (1995); cf. Luginbyhl v. Commonwealth, 48 Va.App. 58, 64-66, 628 S.E.2d 74, 77-79 (2006) (en banc) (assuming without deciding that the breath-test certificate was admitted in violation of the Confrontation Clause, but affirming conviction because the record included such overwhelming evidence of the appellant’s guilt that the erroneous admission of the certificate was harmless beyond a reasonable doubt). Thus, we cannot conclude that the error here was harmless beyond a reasonable doubt.

III. Conclusion

In sum, we hold that the certificate of breath-test analysis is testimonial and that the facts establishing the validity and *730 admissibility of a breath-test result must be proved by live, in-court testimony in accordance with Melendez-Diaz.FN9 We accordingly conclude that the trial court erred, reverse Grant’s conviction, and remand for further proceedings if the Commonwealth be so advised.

FN9. We recognize that an accused may waive his right of confrontation under the Sixth Amendment. SeeMelendez-Diaz, — U.S. at —- n. 3, 129 S.Ct. at 2534 n. 3 (“The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.”). Prior to Melendez-Diaz our Supreme Court construed Code § 19.2-187.1 to be such a procedural rule. See Magruder, 275 Va. at 305, 657 S.E.2d at 124. Because Grant preserved his confrontation right under Code § 19.2-187.1, we express no opinion on whether Code § 19.2-187.1 continues to remain a constitutionally valid notice and demand statute in light of the United States Supreme Court’s decision in Melendez-Diaz. See Melendez-Diaz, — U.S. at —-, 129 S.Ct. at 2539 (“[T]he [defendant's] ability to subpoena the analysts … is no substitute for the right of confrontation.”).

Reversed and remanded.
Va.App.,2009.  Grant v. Com.  54 Va.App. 714, 682 S.E.2d 84

“In Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections under the law.”

In Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections under the law. Most police agencies now take the position that the court-recognized status of a driver’s license as a privilege, coupled with the statutory authorization for chemical intoxication tests in driving-while-intoxicated cases, amounts to a waiver of a suspect’s constitutional rights against self-incrimination and the right to counsel prior to questioning and the giving of the test, unless otherwise provided by state law. Consequently, the normal order of police routine involves (1) a demand on the suspect to take the test, (2) extensive questioning, (3) performing the test, and finally, (4) an offer of an opportunity to the suspect to consult counsel.

In cases where the police should have recognized that the cause of the apparently intoxicated behavior was not alcohol, but was instead a medical condition from which the subject was suffering, a cause of action may exist against the police for failure to assure that the defendant was immediately delivered to a hospital for medical treatment.  Of course, it becomes very important to provide alternate reasons for the suspect’s failure to properly perform standardized field sobriety tests.

In one Federal case, officers had probable cause to arrest motorist at roadblock, and such seizure did not violate his civil rights, where officer received report that possibly intoxicated driver was slumped over steering wheel of vehicle parked on shoulder of interstate, motorist’s appearance indicated that he had been drinking, motorist declined to answer officer’s questions and drove away without explanation, motorist failed to stop when officer engaged his emergency equipment, bumped motorist’s vehicle,and shot out his tires, and motorist swerved to prevent officer from passing him. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983. Latta v. Keryte, 118 F.3d 693 (10th Cir. 1997).

“Pursuant to Rhode Island Drunk Driving, DWI and DUI procedures, a driver is entitled to refuse to take a chemical test upon the request of law enforcement.”

Pursuant to Rhode Island Drunk Driving, DWI and DUI procedures, a driver is entitled to refuse to take a chemical test upon the request of law enforcement.  Of course, this almost always gives rise to a “refusal” charge being levied against the suspect. In Rhode Island, a criminal defense attorney will often times utilize this refusal charge as leverage to obtain a dismissal in the criminal DUI matter.  In light of the fact that a refusal charge is civil in nature as opposed to criminal, it is often a more favorable result to admit to the refusal charge in consideration of the criminal charge being dismissed.  This practice has reached customary status among Judges and prosecutors across Rhode Island.

This blog entry also discusses the application of chemical tests to suspects that are unconscious or in such a medical state that the test is administered for purposes of medical treatment, rather than strictly for law enforcement purposes.

All fifty states and the District of Columbia have enacted statutes authorizing the admission in evidence of the results of chemical intoxication tests. These statutes are commonly referred to as “implied consent laws”; they generally declare that driving is a privilege subject to state licensing, with one of the conditions for obtaining a license that the driver submit to a test for intoxication on request. The police must have probable cause to request a chemical intoxication test. Because of differences in language among the state statutes, it is necessary for counsel to consult his state’s statute and to refer to supportive case decisions to ascertain the full rights of his client respecting submission to these tests.

Differences in statutory provisions include such matters as sanction or the lack of sanction for refusal to submit to a test, admissibility as evidence of the fact of refusal to submit to test, the type or types of tests that can be made, whether the police or the defendant can choose the type of test to be administered, the qualifications of the persons who give or supervise the tests, the predicate that must be laid for the introduction of results of the tests, whether the defendant is entitled to his own independent test in addition to the one administered by the police, and whether a dead, unconscious, or disabled person may be tested without permission. Implied consent statutes ordinarily do permit the person tested to have a physician of his own choice administer a chemical intoxication test in addition to the one administered at the direction of the police.

The refusal of a motorist to submit to a chemical intoxication test generally constitutes grounds, under implied consent statutes, for the suspension or revocation of his driver’s license. In most states, acquittal of the charge of driving while intoxicated does not preclude revocation or suspension of the motorist’s license for refusal to submit to the test. However, the motorist generally has a right to a hearing on the question of the reasonableness of his refusal to submit to the test before his license may be revoked or suspended. Currently, the States of Texas, Wisconsin, Mississippi, and North Carolina do not penalize the driver for refusing to submit to the test if a driving while intoxicated case is dismissed or there was a finding of not guilty.

Pursuant to Rhode Island Drunk Driving, DWI and DUI procedures, a driver is entitled to refuse to take a chemical test upon the request of law enforcement.  Of course, this almost always gives rise to a “refusal” charge being levied against the suspect. In Rhode Island, a criminal defense attorney will often times utilize this refusal charge as leverage to obtain a dismissal in the criminal DUI matter.  In light of the fact that a refusal charge is civil in nature as opposed to criminal, it is often a more favorable result to admit to the refusal charge in consideration of the criminal charge being dismissed.  This practice has reached customary status among Judges and prosecutors across Rhode Island.

This blog entry also discusses the application of chemical tests to suspects that are unconscious or in such a medical state that the test is administered for purposes of medical treatment, rather than strictly for law enforcement purposes.

All fifty states and the District of Columbia have enacted statutes authorizing the admission in evidence of the results of chemical intoxication tests. These statutes are commonly referred to as “implied consent laws”; they generally declare that driving is a privilege subject to state licensing, with one of the conditions for obtaining a license that the driver submit to a test for intoxication on request. The police must have probable cause to request a chemical intoxication test. Because of differences in language among the state statutes, it is necessary for counsel to consult his state’s statute and to refer to supportive case decisions to ascertain the full rights of his client respecting submission to these tests.

Differences in statutory provisions include such matters as sanction or the lack of sanction for refusal to submit to a test, admissibility as evidence of the fact of refusal to submit to test, the type or types of tests that can be made, whether the police or the defendant can choose the type of test to be administered, the qualifications of the persons who give or supervise the tests, the predicate that must be laid for the introduction of results of the tests, whether the defendant is entitled to his own independent test in addition to the one administered by the police, and whether a dead, unconscious, or disabled person may be tested without permission. Implied consent statutes ordinarily do permit the person tested to have a physician of his own choice administer a chemical intoxication test in addition to the one administered at the direction of the police.

The refusal of a motorist to submit to a chemical intoxication test generally constitutes grounds, under implied consent statutes, for the suspension or revocation of his driver’s license. In most states, acquittal of the charge of driving while intoxicated does not preclude revocation or suspension of the motorist’s license for refusal to submit to the test. However, the motorist generally has a right to a hearing on the question of the reasonableness of his refusal to submit to the test before his license may be revoked or suspended. Currently, the States of Texas, Wisconsin, Mississippi, and North Carolina do not penalize the driver for refusing to submit to the test if a driving while intoxicated case is dismissed or there was a finding of not guilty.

Cases:

Implied consent law applied broadly and generally to those who drive, and did not require proof of actual driving immediately prior to lawful arrest for driving while under the influence; thus, under statute providing for suspension or revocation of driver’s license based on refusal to submit to chemical testing under implied consent law, proof that arrestee was driving immediately prior to the arrest was not required; abrogating Weber v. Orr,274 Cal.App.2d 288, 79 Cal.Rptr. 297; Medina v. Department of Motor Vehicles,188 Cal.App.3d 744, 233 Cal.Rptr. 557; Jackson v. Pierce,224 Cal.App.3d 964, 274 Cal.Rptr. 212. West’s Ann.Cal.Vehicle Code §§ 13353, 23612. Troppman v. Valverde, 40 Cal. 4th 1121, 57 Cal. Rptr. 3d 306, 156 P.3d 328 (2007); West’s Key Number Digest, Automobiles 144.1(1.20).

Police dispatcher who observed driver’s refusal to consent to breath alcohol test over a closed circuit television did not “witness” the refusal, as required to endorse police officer’s report of the refusal under the implied consent statute; when a person is observing via closed circuit television, she is completely reliant on the image, and perhaps sound, supplied by the camera in the other room, and as a consequence, there is no guarantee that she will be able to see and hear fully what is happening. C.G.S.A. § 14-227b(c). Winsor v. Commissioner of Motor Vehicles, 101 Conn. App. 674, 922 A.2d 330 (2007); West’s Key Number Digest, Automobiles 144.2(1).

Defendant’s proclaimed fear of needles was not sufficient cause for his refusal to submit to blood alcohol concentration (BAC) test, following his arrest for driving under influence of alcohol (DUI); defendant indicated to officers that he simply “preferred” to have a breath test rather than a blood withdrawal, while defendant expressed general fear of needles, and generally referenced risk of contracting Acquired Immune Deficiency Syndrome (AIDS), defendant admitted that he had received shots, he denied ever having seen a psychologist for his fear, and he never identified any mental or medical conditions that would be adversely affected by administration of blood withdrawal. Halen v. State, 136 Idaho 829, 41 P.3d 257 (2002); West’s Key Number Digest, Automobiles 144.1(1.20).

Testing after “accident”: Intoxicated motorist who had been driving vehicle in an out of control manner and who eventually came to a stop in vehicle with a tire missing and damage to vehicle rim, was in an “accident” for purposes of automobile exception to physician-patient privilege contained in implied consent statute, and thus results of blood test taken from motorist were admissible in prosecution for driving under the influence of intoxicating liquor. M.C.L.A. § 257.625a(6)(e). People v. Green, 260 Mich. App. 392, 677 N.W.2d 363 (2004), appeal denied, 471 Mich. 873, 685 N.W.2d 669 (2004); West’s Key Number Digest, Limitation of Actions 212.

“Confusion doctrine,” under which drunk-driving arrestee might assert confusion arising from proximate advice by arresting or booking officers as to both Miranda right to counsel and implied-consent law that does not allow counsel for decision whether to submit to chemical testing of blood alcohol level, would apply, if at all, only where Miranda warning precede implied-consent warnings. Blomeyer v. State (1994) 264 Mont 414, 871 P2d 1338.

Defendant’s due process rights were violated, even though he consented to withdrawal of blood, when he was shackled to hospital bed and held down by six persons while another person withdrew his blood at direction of police officers while defendant was resisting. U.S.C.A. Const.Amend. 14; Const. Art. 1, § 10. State v. Sisler, 114 Ohio App. 3d 337, 683 N.E.2d 106 (2d Dist.Clark County 1995).

Motorist’s fear of invasive medical procedures, including injections and tests using needles, and concern about risk of contracting HIV (human immunodeficiency virus) did not justify refusal to submit to blood alcohol test. Jacobs v. Com., Dept. of Transp., Bureau of Driver Licensing, 695 A.2d 956 (Pa. Commw. Ct. 1997), appeal denied (Pa. Aug. 13, 1997).

Motorist’s refusal to sign waiver of hospital-liability form, because he had lost his eyeglasses and was unable to read it, did not constitute refusal to take blood test for purposes of license suspension under implied-consent law, where motorist testified that he did not refuse to take blood test but refused to release hospital from liability by signing form, and waiver of hospital liability was not same as hospital consent form, which did not constitute impermissible precondition to chemical testing so as to excuse motorist’s refusal to submit to blood test. Stump v. Department of Transp., Bureau of Driver Licensing (1995, Pa Cmwlth) 664 A2d 1102.

Motorist’s fear that needle to be used to obtain blood sample was not sterile was not valid justification vitiating his refusal to submit to blood-alcohol test. Stenhach v. Department of Transp., Bureau of Driver Licensing (1994, Pa Cmwlth) 651 A2d 218.

Defendant failed to establish that she was physically unable to provide an alcohol breath test sample, and thus the Commonwealth was under no duty to prove that it offered defendant a blood test, during prosecution for driving under the influence (DUI); defendant provided no medical records or witness testimony to substantiate her claim that she had a chronic lung condition, she had successfully completed breath tests on two prior occasions when she was convictions of two prior DUI’s, and police officer testified that defendant provided an adequate breath sample when he stopped her vehicle, that she failed to provide an adequate breath sample after he brought her to the police station, and that he believed that she “was not trying to give him a proper breath.” West’s V.C.A. § 18.2-268.2, subds. A, B. Sawyer v. Com., 43 Va. App. 42, 596 S.E.2d 81 (2004); West’s Key Number Digest, Limitation of Actions 415.

Chemical intoxication tests—Extraction of sample from unconscious person

If driver is comatose or otherwise incapacitated so that he cannot appreciate significance of arrest, chemical test to determine his blood alcohol content may be administered without formal arrest so long as police who ordered test possessed probable cause for driver’s arrest. People v. Goodell (1990, 4th Dept) 164 App Div 2d 321, 565 NYS2d 929, app gr 77 NY2d 961, 570 NYS2d 494, 573 NE2d 582 and affd 79 NY2d 869.

In prosecution on charges of vehicular homicide and driving under the influence of alcohol, motion to suppress evidence obtained through blood test taken at hospital while charged driver was unconscious was improperly denied, where, at time blood was taken, officers who investigated accident did not observe any signs of alcohol consumption by driver, police did not have a warrant to conduct test, no charges had been filed against driver, nor had he been placed under arrest. Commonwealth v. Kohl (1992) 532 Pa 152, 615 A2d 308.

The initial taking of blood by hospital personnel during their treatment of injuries suffered by the defendant in an automobile accident did not implicate any Fourth Amendment rights since the blood was taken because of the serious nature of the accident and before any request by a state trooper; however, state action was involved when medical personnel gave the blood test results to the trooper without his having obtained a search warrant and, thus, the Fourth Amendment applied to the release of the test results. Commonwealth v. Franz (1993, Pa Super Ct) 634 A2d 662.

Chemical intoxication tests—Test of sample drawn for emergency medical purposes

The trial court did not err in a second degree murder prosecution arising from an automobile striking a pedestrian which resulted in an involuntary manslaughter conviction by denying defendant’s motion to suppress the results of a chemical analysis of his blood. Defendant was extremely violent on the ride to the hospital and at the hospital; the doctors could not understand defendant’s responses to their questions; defendant had a high “index of suspicion” of a head injury and the tests defendant needed could not be conducted while he was combative and thrashing around; the physicians determined that they had to sedate defendant to treat him; and defendant was already unconscious when the officer arrived to obtain the blood sample for chemical analysis so that the officer could not advise defendant of his right to refuse the test. Defendant had no constitutional right to refuse the blood test and could not have “willfully refused” to submit to the test under G.S. § 20-16.2(c) because he was unconscious and officers did not request that he submit to the test. Although defendant contends that his statutory rights were violated in that he was conscious until he was rendered unconscious and the officers did not give him the right to refuse the test, no evidence exists to show that anyone other than the attending physicians made the decision to render the defendant unconscious, no evidence exists to show that defendant was rendered unconscious for any reason other than to treat him medically, there is no evidence of bad faith on the part of the charging officer, and there was a need to obtain a blood sample before defendant’s alcohol level dropped. State v. Garcia-Lorenzo (1993) 110 NC App 319, 430 SE2d 290.

The trial court abused its discretion in admitting in evidence the blood alcohol test of a motorist whose blood had been drawn at the hospital for purposes of diagnosing his condition where neither the motorist’s medical records, the label on the blood sample, nor the attending nurses could identify who had drawn the sample and transported it to the lab. State v. Cribb (1992, SC) 426 SE2d 306.

HIPAA won’t help: Health Insurance Portability and Accountability Act (HIPAA) and privacy rule promulgated pursuant to HIPAA for individual medical information did not overrule or preempt holding in State v. Hardy that a defendant did not have an expectation of privacy in blood-alcohol test results obtained after an accident solely for medical purposes. U.S.C.A. Const.Amend. 4; Health Insurance Potability and Accountability Act of 1996, § 262(a), 42 U.S.C.A. § 1320d; 45 C.F.R. §§ 160.203, 164.104, 164.512(f)(1)(ii)(B) (2006)..Murray v. State, 245 S.W.3d 37 (Tex. App. Austin 2007), reh’g overruled, (Jan. 17, 2008) and petition for discretionary review refused, (June 11, 2008); West’s Key Number Digest, Automobiles 411.

“Rhode Island DWI or DUI charge usually falls into one of two categories”

A Rhode Island DUI or DWI charge is defended against differently depending on whether a suspect agreed to take the chemical test or whether they refused.  Once a suspect has agreed to take the test, and performs above the requisite blood alcohol level for intoxication, a criminal defense attorney must focus on attacking the admissibility of the subject test.

One or more scientific tests presently are conducted in all jurisdictions on driving-while-intoxicated suspects for the purpose of (1) bolstering and corroborating police opinion testimony of intoxication and, (2) in those states that set presumptive blood-alcohol intoxication levels, to demonstrate that the defendant’s blood-alcohol level exceeded the permissible.  Use of evidence of blood-alcohol concentration helps standardize the opinions of experts and minimizes reliance on the traditional evidence of intoxication on which opinions can vary so widely. Where a scientific test has been made on the defendant, it often is the main weapon of the prosecution, with all other evidence being used to corroborate the test results.

There are four basic scientific tests which may be conducted to determine the degree of intoxication: blood, urine, breath, and saliva tests. The results of urine, saliva, and breath tests for alcohol must be converted into a blood-alcohol reading in order to be useful in determining whether the subject was intoxicated.

A Rhode Island DUI or DWI charge is defended against differently depending on whether a suspect agreed to take the chemical test or whether they refused.  Once a suspect has agreed to take the test, and performs above the requisite blood alcohol level for intoxication, a criminal defense attorney must focus on attacking the admissibility of the subject test.

One or more scientific tests presently are conducted in all jurisdictions on driving-while-intoxicated suspects for the purpose of (1) bolstering and corroborating police opinion testimony of intoxication and, (2) in those states that set presumptive blood-alcohol intoxication levels, to demonstrate that the defendant’s blood-alcohol level exceeded the permissible.  Use of evidence of blood-alcohol concentration helps standardize the opinions of experts and minimizes reliance on the traditional evidence of intoxication on which opinions can vary so widely. Where a scientific test has been made on the defendant, it often is the main weapon of the prosecution, with all other evidence being used to corroborate the test results.

There are four basic scientific tests which may be conducted to determine the degree of intoxication: blood, urine, breath, and saliva tests. The results of urine, saliva, and breath tests for alcohol must be converted into a blood-alcohol reading in order to be useful in determining whether the subject was intoxicated.
Cases:
Confrontation Clause challenges to lab reports: Toxicology data generated by lab machines from testing of defendant’s blood sample, indicating that defendant’s blood contained phencyclidine (PCP) and alcohol, did not constitute “hearsay” evidence, subject to the Confrontation Clause, in prosecution for operating a motor vehicle while under the influence of drugs or alcohol, as the machines were not persons or declarants within the meaning of the hearsay rule. U.S.C.A. Const.Amend. 6; Fed.Rules Evid.Rule 801(c), 28 U.S.C.A. U.S. v. Washington, 498 F.3d 225, 74 Fed. R. Evid. Serv. 332 (4th Cir. 2007), petition for cert. filed (U.S. Dec. 14, 2007); West’s Key Number Digest, Criminal Law 662.8.

In People v. Superior Court (1972) 6 Cal 3d 757, 100 Cal Rptr 281, 493 P2d 1145, defendant, who had been in an automobile accident but had not been arrested, was awaiting emergency treatment in a hospital and he signed, at a police officer’s request, a written consent authorizing the taking of a blood sample for purposes of a blood-alcohol test. The Supreme Court of California rejected the People’s contention that the taking of a blood sample in a medically approved manner but without consent does not violate the Fourth or Fourteenth Amendments where there is probable cause to arrest, even though the taking is not pursuant to a search warrant or incident to a lawful arrest. The court disapproved several appeal court decisions insofar as they were inconsistent with this opinion and observed that the taking of a sample under the state implied consent law is expressly conditioned on a lawful arrest for driving under the influence of intoxicating liquor and upon the reasonable belief of the peace officer that the arrestee was, in fact, so driving. The Supreme Court noted that the burden of justifying the taking without a search warrant had not been met, since evidence sustained the trial court’s determination that the consent, the only justification offered by the People, had not been free and voluntary.

A compulsory seizure of blood for a blood-alcohol test, without a warrant, is permissible if the procedure (1) is done in a reasonable, medically approved manner, (2) is incident to a lawful arrest, and (3) is based on a reasonable belief that the arrestee is intoxicated. Thus, the lack of informed consent did not make the withdrawal of blood from a driver arrested for driving under the influence of alcohol an unreasonable seizure, where the sample was taken at the police station without the driver’s consent but without force, by a licensed clinical technologist, using a standard procedure and materials obtained from a local hospital. Withdrawal of a blood sample from a driver arrested for driving under the influence of alcohol at the police station without his consent, but without force, by a licensed clinical technologist using a standard procedure and materials obtained from a local hospital, did not deviate so far from reasonable medical practices as to constitute a constitutionally impermissible seizure. Thus, the municipal court did not err in dismissing the driver’s motion to suppress the blood sample. The technologist certified the procedure used was medically approved; the technologist was described by his supervisor as “an outstanding phlebotomist”; apart from the issues of consent and authorization, defendant did not object to the manner in which the blood was withdrawn; and nothing suggested that performing the test in a jail rather than a hospital was unsafe or unsanitary. The seizure was not unreasonable per se merely because no injury or accident was involved or because of the misdemeanor nature of the offense. Given the seriousness of the threat posed by drunken driving, the fact that defendant was charged with driving with a blood-alcohol level of.08 or greater, and the evidentiary value of a blood test in such a prosecution, the community’s need for evidence outweighed defendant’s interest in privacy and security. People v. Ford (1992, 6th Dist) 4 Cal App 4th 32, 5 Cal Rptr 2d 189, 92 Daily Journal DAR 2757, review den (May 21, 1992).

In prosecution for driving under influence of alcohol, felony hit and run, and vehicular manslaughter, police officers were not required to obtain search warrant to forcibly extract blood sample from defendant’s arm, where defendant, arrested for felony drunk driving, refused to provide sample of blood or urine so that his blood alcohol level could be determined and where defendant was under arrest, probable cause existed for taking blood and facts presented type of emergency situation in which there was no need for warrant; further, police officers did not violate defendant’s due process rights, where officers used only that degree of force reasonably necessary to overcome defendant’s combativeness and where withdrawal of blood was accomplished in medically approved manner. Carleton v. Superior Court (1985, 4th Dist) 170 Cal App 3d 1182, 216 Cal Rptr 890.

Drivers’ consent to an alcohol breath test was not voluntarily given, where after being arrested for DUI, each driver submitted to a breathalyzer test after being informed of the implied consent warnings that if they failed to submit to an approved chemical test, their drivers’ licenses would be suspended and evidence of refusal would be used at trial, but when it appeared that the intoximeter had been substantially modified and the modified instrument had not been recertified, drivers argued that their consent had not been voluntary, and that the results of the tests should be suppressed, because the changes were so substantial that the instrument required full recertification; additionally, since consent was based on misinformation that the chemical test was by an approved instrument consent was not voluntary. State v. Polak (1992, Fla App D1) 598 So 2d 150, 17 FLW D 1014.

Substantial evidence supported finding that officer complied with statutorily required 20-minute observation period before administering breath alcohol test; officer testified that he began observing defendant at 11:13 p.m. and administered the test beginning at 11:36 p.m., despite fact that jail records indicated defendant was admitted at 11:22 p.m., jailer testified that person admitting defendant probably took log-in time off of the computer screen in admission room, and that jail made no efforts to synchronize computer clock and intoxilyzer clock, Intoxilyzer Instrument Printer Card, which documented the testing of defendant, included officer’s handwritten notation, “Observation Began at 2313 hrs”, and printer card contained computer printout line stating “Subject Test.223 23:36 EDT”. 500 Ky.Admin.Regs. 8:030 § 1(1).Eldridge v. Com., 68 S.W.3d 388 (Ky. Ct. App. 2001); West’s Key Number Digest, Automobiles 422.1.

Noncompliance and refusal: A driver’s act in not blowing into a breath testing machine and by blowing around the mouthpiece to prevent the necessary quantity of air to proceed into the machine may be considered a refusal to submit to a chemical test, so as to support revocation of driver’s license. V.A.M.S. § 577.041. Tarlton v. Director of Revenue, State, 201 S.W.3d 564 (Mo. Ct. App. E.D. 2006); West’s Key Number Digest, Automobiles 144.1(1.20).

Tampering charge: A person’s blood alcohol content, as it exists inside their body and within their control, does not constitute “physical evidence,” or a “thing presented to the senses” for purposes of statute making tampering with evidence a crime; potentially measurable amounts of blood still within the human body do not constitute evidence, and until one’s breath or blood has been obtained or collected for analysis, it cannot be considered either “physical evidence” or a “thing presented to the senses.” Thus defendant who had three double shots of whiskey and half a beer following truck accident but before highway patrol officer asked defendant to take blood alcohol level (BAC) tests did not tamper with the evidence, as BAC level while still within defendant’s body was not “physical evidence.” Montana Code § 45-7-207. State v. Peplow, 2001 MT 253, 307 Mont. 172, 36 P.3d 922 (2001); West’s Key Number Digest, Obstructing Justice 5.

Allowing State to establish foundation for Intoxilizer result through annual certification form for Intoxilizer, which was hearsay, without calling records custodian for certification form, did not violate defendant’s confrontation rights; annual certification form was not substantive evidence used to prove charged offense, and thus certification form was not offered or admitted under state crime laboratory hearsay exception, but merely offered as part of foundation required for admission of other substantive evidence. Fed R Evid Rules 104(a), 803(8); Mont.Admin.R. 23.4.214. State v. Delaney, 1999 MT 317, 297 Mont. 263, 991 P.2d 461 (1999); West’s Key Number Digest, Criminal Law 662.8.

In State v. Fuller, 24 NC App 38, 209 SE2d 805, the court granted new trial after a conviction for driving while under the influence of intoxicating liquors and resisting an officer, holding that the failure of the state to establish that the defendant was accorded his statutory right as to advice that he could have another blood alcohol test administered rendered the results of a breathalyzer test inadmissible in evidence, its admission over objection constituting prejudicial error.

Allegation that blood sample of defendant charged with driving under the influence of alcohol or a controlled substance (DUI) was improperly refrigerated before hospital conducted blood alcohol content (BAC) tests was insufficient to require state to provide additional evidence to prove reliability of BAC test, since allegation was a general and speculative allegation of testing error. 75 Pa.C.S.A. § 1547(c). Com. v. Demark, 2002 PA Super 170, 800 A.2d 947 (Pa. Super. Ct. 2002); West’s Key Number Digest,Automobiles 425.
Statutory presumptive intoxication levels

Forensic scientists in the employ of the state and national safety organizations have attempted to establish that, at a certain level of alcohol in the blood, any individual would be intoxicated. Interestingly, there is some difference in state legislation as to the exact percentage considered to establish that the individual was intoxicated, ranging from a low of 0.08 percent to no set limit. Probably 0.15 percent is the most generally accepted limit, but 0.10 percent is gaining support. In several areas, the state’s experts now will testify that 0.10 percent of blood alcohol places the subject “under the influence,” whereas the same experts previously testified that it took 0.15 percent.

All states presently set presumptive intoxication levels in terms of blood-alcohol concentration.  Expert witnesses generally are not required to interpret the results of chemical intoxication tests enumerated in statutes creating presumption or other inference of intoxication from specified percentages of alcohol in the system.  Despite a test result creating a presumption of intoxication, the jury may acquit if the defendant’s guilt is not proven beyond a reasonable doubt.  In most states, an agency of the state government has responsibility for determining the appropriate methods of handling chemical intoxication tests and for certifying testing operations.

Statutes generally establish presumptive levels of intoxication in terms of blood alcohol patterned after the Uniform Chemical Test for Intoxication Act § 7.  Uniform Chemical Test for Intoxication Act § 7 provides that if chemical analysis indicates 0.05 percent or less alcohol by weight in a person’s blood such fact is prima facie evidence that the person was not under the influence of intoxicating liquor, that if the concentration of alcohol was in excess of 0.05 percent but less than 0.15 percent by weight such fact was relevant but not to be given prima facie effect in establishing that the person was or was not under the influence of intoxicating liquor, and that if 0.15 percent or more alcohol by weight was disclosed by the test such fact was prima facie evidence that the person was under the influence of intoxicating liquor.

Automatic or per se DWI statutes
Cases:

Driving under the influence (DUI) statute that prohibited persons under age 21 from driving with a blood alcohol level of .02 or more, while prohibiting persons 21 and over from driving with a blood alcohol level of .08 or more, did not violate equal protection rights of younger group; statute was rationally related to the proper governmental purpose of prohibiting underage drinking and driving. U.S.C.A. Const.Amend. 14; Code 1975, §§ 28-1-5, 32-5A-191. Jolly v. State, 858 So. 2d 305 (Ala. Crim. App. 2002), cert. denied, (Mar. 28, 2003); West’s Key Number Digest, Limitation of Actions 316.

In order to support a charge of “traditional DUI”, the State must prove that a defendant was driving or in physical control of a vehicle while under the influence of intoxicating liquor; in contrast, to support a charge of “per se DUI,” the State need not prove that the defendant was under the influence while driving or controlling a vehicle, as it suffices to prove that, within two hours of driving or controlling a vehicle, the defendant had an alcohol concentration at or exceeding the statutorily determined rate. Arizona Revised Statutes § 28-1381A1, 2. Guthrie v. Jones, 202 Ariz. 273, 43 P.3d 601 (Ct. App. Div. 1 2002); West’s Key Number Digest, Automobiles 332.

Because state chose to prosecute driver for violation of “per se” paragraph of drunk-driving statute, and not for violation of “under influence” paragraph, proof of properly administered chemical test showing blood-alcohol level higher than statutory standard of 0.10 percent was conclusive proof of violation, without need for proof that defendant’s driving was impaired. State v. Edmondson (1994, Idaho App) 867 P2d 1006.

“Zero tolerance law,” which makes it a crime for anyone under age of 21 to drive with blood alcohol content of 0.02 percent or higher is rationally related to a legitimate legislative purpose of reducing teenage traffic fatalities and protecting all members of the public and thus does not violate equal protection rights of those prosecuted under that law. U.S.C.A. Const.Amend. 14; Const. §§ 1 to 3; KRS 189A.010(1)(e). Com. v. Howard, 969 S.W.2d 700 (Ky. 1998).

Evidence supported conviction for violation of per-se drunk-driving statute forbidding driving with blood alcohol level of 0.08 percent or more, where breath test whose proper administration was disputed showed 0.09 percent, test had barely sufficient margin of error of 0.015 percent to support defendant’s claim that blood-alcohol level could have been below 0.08 percent, and ample evidence of erratic driving supported inference that level was 0.08 percent or more. State v. Weeks (1993, Me) 634 A2d 1275.

Minors: Statute, by imposing strict liability upon driver under age of 21 who has alcohol concentration of 0.02 or more, regardless of whether his ability to drive is impaired, does not create conclusive burden-shifting presumption that violates Due Process Clause; statute does not create factual presumption with respect to when illegal alcohol concentration is present, and impairment is not element of crime. U.S.C.A. Const.Amend. 14; Montana Code § 61-8-410. State v. Luchau, 1999 MT 336, 297 Mont. 415, 992 P.2d 840 (1999); West’s Key Number Digest, Automobiles 316.

Trial court in prosecution for driving under influence of alcohol erred in instructing jury as to statutory presumptions arising from various blood alcohol levels (less than 0.05 percent, presumed not intoxicated; 0.05–.10, blood alcohol level may be evidence of intoxication; more than 0.10, presumed under influence), without also instructing that presumed fact (driver under influence) allowed by third presumption must nevertheless be proved beyond reasonable doubt, and where jury returned general guilty verdict without distinguishing between traditional “under influence” charge based on presumptions and “per se” offense based on blood alcohol level alone. Long v. State (1993, Nev) 853 P2d 112.

Where the defendant’s blood alcohol content was measured at.141 percent about 2 hours after his arrest, the blood alcohol content did not represent a substantial departure from the permissible limit and could have been below.10 percent when he was stopped and risen above the limit during the substantial delay prior to testing and, therefore, the inference of guilt was too weak to support the defendant’s conviction for driving under the influence of alcohol with a blood alcohol content of.10 percent or greater in the absence of evidence relating his blood alcohol content test results back to the time of driving. Commonwealth v. Loeper (1995, Pa) 663 A2d 669.

Driving under the influence of alcohol statute (DUI) merely created a permissive evidentiary inference, rather than a mandatory presumption, that a driver had a blood alcohol content of.10 percent or more at the time of driving if a test, conducted within three hours after driving, indicated a blood alcohol content of.10 percent or more, and thus, statute did not create the unconstitutional prospect of conviction for innocent conduct, in that it did not preclude a defendant from admitting evidence that his blood alcohol content was below the legal limit at the time of driving. 75 Pa.C.S.A. § 3731(a)(1). Com. v. Murray, 2000 PA Super 84, 749 A.2d 513 (Pa. Super. Ct. 2000); West’s Key Number Digest, Automobiles 316.

Witness’s testimony at trial for intoxication manslaughter that results of lab tests on defendant’s blood showed a blood alcohol content of 0.18 was based on scientific testing that was sufficiently reliable to prove matter asserted, namely that defendant’s blood alcohol content exceeded “per se” level of 0.10, even though defendant challenged precision of lab’s measurements of his blood alcohol level; lab tests were accurate to within plus or minus 10%, and potential error in reporting defendant’s blood alcohol content at 0.18 did not create a risk that his actual blood alcohol content was lower than “per se” level. V.T.C.A., Penal Code § 49.08; Rules of Evid., Rule 702. Morris v. State, 214 S.W.3d 159 (Tex. App. Beaumont 2007), petition for discretionary review granted, (Sept. 12, 2007); West’s Key Number Digest, Automobiles 411.

Courts across the nation are making it more difficult to challenge the reliability of chemical tests.  In Rhode Island, the most effective arguments are often times made to a jury.  Statutory presumptions and protocol for the test’s admissibility are more easily understood by Judges confronted with these issues every day; however, when a jury is involved, the mystique of this computerized machine becomes the subject of doubt, speculation and questionable engineering.

"In Rhode Island, the prosecution can prove the elements of a DWI or DUI charge without the admissibility of a chemical test"

In Rhode Island, the prosecution can prove the elements of a DWI or DUI charge without the admissibility of a chemical test. These cases are referred to as “observation” cases. As one can imagine, it is more difficult for the prosecution to prove the elements of a DUI without an empirical analysis of the suspect’s blood alcohol content; however, it can be done in a variety of different factual scenarios. Objective signs of intoxication, those ordinarily testified to as having been observed by the arresting officer or other prosecution witness, include the odor of alcohol on the breath, slurring of speech, inflamed and watery eyes, a ruddy complexion, an unsteady gait, and poor coordination. Usually, one or more of these observed signs comprise the basis for the officer’s probable cause in making the arrest. However, as is discussed in the section that follows, a variety of conditions affecting an individual’s health can present the same or similar symptoms.

In Rhode Island, the prosecution can prove the elements of a DWI or DUI charge without the admissibility of a chemical test. These cases are referred to as “observation” cases. As one can imagine, it is more difficult for the prosecution to prove the elements of a DUI without an empirical analysis of the suspect’s blood alcohol content; however, it can be done in a variety of different factual scenarios. Objective signs of intoxication, those ordinarily testified to as having been observed by the arresting officer or other prosecution witness, include the odor of alcohol on the breath, slurring of speech, inflamed and watery eyes, a ruddy complexion, an unsteady gait, and poor coordination. Usually, one or more of these observed signs comprise the basis for the officer’s probable cause in making the arrest. However, as is discussed in the section that follows, a variety of conditions affecting an individual’s health can present the same or similar symptoms.

Cases:

An eyewitness bystanders’ statement identifying driver as operator of vehicle at time of accident, odor of alcohol on driver’s breath, slurred speech, and results of field sobriety tests provided probable cause to arrest driver for driving under influence of intoxicating liquor. U.S.C.A. Const.Amend. 4. Paquette v. Hadley, 45 Conn. App. 577, 697 A.2d 691 (1997).

Conviction for driving under the influence of alcohol to extent it was less safe to drive was supported by evidence that motorist abruptly turned left from right-turn-only lane in front of another vehicle and nearly caused accident, that officer activated his emergency lights and siren, that motorist continued driving but eventually stopped car, that officer noticed odor of alcohol on motorist’s breath and that he had bloodshot and glossy eyes, that motorist admitted to having consumed one or two beers, and that motorist failed field sobriety tests, even though motorist’s conviction for making improper turn ultimately was reversed. O.C.G.A. § 40-6-391(a)(1). Burke v. State, 233 Ga. App. 778, 505 S.E.2d 528 (1998).

State trooper’s observations gave him probable cause to arrest motorist for driving while intoxicated, as required to support suspension of motorist’s license; trooper observed motorist’s vehicle swerve from center line on two occasions and noticed strong odor of alcohol when he pulled motorist over, motorist admitted to drinking four or five beers, and motorist failed series of roadside sobriety tests, including reciting alphabet, walk-and-turn test, one-leg stand test, and gaze nystagmus test. V.A.M.S. § 302.505. Poage v. Director of Revenue, State of Mo., 948 S.W.2d 194 (Mo. Ct. App. E.D. 1997).

Information alleging that driver lost control of vehicle, which left road and struck tree, that investigating officer smelled alcoholic beverage in vehicle and on driver’s breath, and that driver had admitted having “had like 2 beers,” was sufficient to allege offense of common law driving while intoxicated, even though toxicological report had shown blood alcohol content of only.07 of one per centum by weight; low blood alcohol content only created presumption of nonintoxication, which state could rebut. McKinney’s Vehicle and Traffic Law §§ 1192(3), 1195(2)(c). People v. McConnell, 11 Misc. 3d 57, 812 N.Y.S.2d 742 (App. Term 2006); West’s Key Number Digest, Automobiles 353(6).

Police officer who was outside of his jurisdictional city limits and had no warrant had sufficient personal observation that criminal offense was being committed in his presence giving him authority to arrest defendant for driving while intoxicated (DWI); dispatcher had relayed information from concerned citizen about suspected intoxicated driver, officer had been told what vehicle to be looking for, and after identifying suspect vehicle and corroborating information provided by concerned citizen, officer observed driver steer out of her lane of traffic several times, cross into oncoming traffic, and make wide right turn and leave roadway. V.T.C.A., Penal Code § 49.04; Vernon’s Ann.Texas C.C.P. art. 14.03. Leonard v. State, 135 S.W.3d 98 (Tex. App. Texarkana 2004); West’s Key Number Digest, Limitation of Actions 349(12).

It is important to keep in mind that certain observations may be the result of conditions that are not related to the ingestion of alcohol. At times, arresting officers or others may overlook the possibility that the defendant’s apparent intoxication is the result of illness or injury. A diabetic can appear drunk without having had a drink and can die if not properly treated. Likewise a person suffering an automobile accident can appear drunk solely from the shock. The smell of alcohol found on the defendant’s breath could be caused by a mouthwash. The defendant’s eyes could be red for any number of reasons. The suspect’s natural speech may tend to be slurred, or his natural walk may tend to be unsteady. One of the most condemning indications of extreme intoxication is that the defendant lost control of his bowel or bladder function; however, this might also happen if the defendant were very sick.

Conditions giving the appearance of intoxication or simulating certain characteristics of intoxication that may be confused by arresting officers or other witnesses as intoxication include:

Flushed face caused by:

Blushing
Diabetes
High blood pressure
Menopause
Poisoning
Sunstroke

Acetone odor (a fruity odor) of the breath caused by:

Amnesia
Blood poisoning
Brain concussion and other brain injuries
Delirium tremens
Diabetes
Epilepsy
Food poisoning
Intestinal obstruction
Migraine headache
Nervous disorder
Starvation
Stomach cancer
Stomach ulcer
Vomiting

Eye disorder caused by:

Brain hemorrhage
Drugs
Fractured skull
Fright
Hay fever
High blood pressure
Nausea
Pain

Speech disorder caused by:

Adenoid problem
Cleft palate
Dislocation of jaw
Hysteria
Infection
Migraine headache
Toothlessness

Poor coordination (ataxia) caused by:

Exposure to gases, drugs, or chemicals such as carbon monoxide, barbiturates, or industrial chemicals
Inner ear infection
Muscle spasm or injury
Nerve injury
Shock
Spinal cord injury or disease

Hallucinations (delirium) caused by:

Bites or stings
Blood loss
Diabetes
Drugs
Infection
Poisons or poisonous foods

Drowsiness caused by:

Anemia
Brain concussion
Diabetes
Drugs
Sickness

Unnatural heavy sleep (coma) caused by:

Blood clot
Brain concussion
Diabetes
Exposure to chemicals
Heat stroke or high temperatures
Hysterical trance
Shock

An indictment alleged that defendant drove while intoxicated by reason of introduction of alcohol into his body. At trial, defendant introduced evidence that he was taking an anti-depressant drug at time of offense, and that this drug contributed to his intoxication. Held, intoxication resulting from combination of alcohol and a drug that makes a person more susceptible to influence of alcohol is legally equivalent to intoxication by alcohol alone. Trial court did not err by so instructing jury, and by authorizing defendant’s conviction if jury found he was intoxicated by reason of introduction of alcohol, either alone or in combination with the drug. Sutton v. State (1993, Tex App Amarillo) 858 SW2d 648, petition for discretionary review gr (Nov 17, 1993).

Traditionally, the police have requested persons suspected of intoxication to perform certain physical tests, and inability to adequately perform was considered to corroborate their conclusion of intoxication based on objective signs. Perhaps the oldest and best known test for intoxication was the request to walk a straight line. However, while an intoxicated person will encounter difficulty in walking a straight line, there are also many sober people who cannot walk a straight line and, since the police usually do not know how the individual walks when completely sober, this test does not readily establish intoxication.

Alternatively, a suspect may be asked to put his finger to his nose, to balance on one foot, perhaps with the eyes closed, to balance on a narrow stool, to stand or walk heel to toe, to work mathematical problems, or to do any other task where the results are thought likely to corroborate police opinion of intoxication. However, the successful or unsuccessful accomplishment of any of the above tasks indicates little or nothing regarding intoxication in the light of individual performance differences and the effect of various medical conditions on performance.

The police have sometimes shone a light into the eyes of a suspect and testified that the manner of the contraction of the pupil indicated intoxication. However, medical authorities do not presently consider the manner of contraction of the pupil to have substantial relationship to intoxication, at least when the suspect’s normal reaction is not known.

The arresting officer’s testimony as to the slowness of the pupils to react may be easily discredited as a valid intoxication test if the arresting officer had no mechanical means of timing the slowness of pupil reaction. It also is apparent that the officer is not qualified medically to distinguish other conditions that might cause slowness of pupil reaction.

Cases:

Police had “reasonable grounds” to believe that a motorist was driving under the influence of alcohol when they arrested her at the police station for DUI after having arrested her at the scene for reckless conduct, where they saw her fall against the back of her vehicle when she first exited it; observed a runny nose, watery, glassy, bloodshot eyes, and a very strong odor of alcohol on her breath; learned that she had drunk three or four glasses of champagne; gave a field sobriety test which she failed; and spoke with and observed her for 20 minutes before giving a breath test. 625 ILCS 5/2-118.1(b)(2), 11-501 (1996 Bar Ed.). People v. Fortney, 297 Ill. App. 3d 79, 231 Ill. Dec. 720, 697 N.E.2d 1 (2d Dist. 1998).

Statute providing that standardized field sobriety tests (SFST) may serve as evidence, in a prosecution for operating a vehicle while under the influence of alcohol, if the officer administered the tests in substantial compliance with generally accepted testing standards, violated constitutional provision granting the Supreme Court exclusive rulemaking authority on procedural matters; the legislative enactment was in conflict with Supreme Court’s Homan decision implicitly interpreting rule of evidence requiring expert testimony to be reliable as requiring strict compliance with generally accepted testing standards for field sobriety tests. Const. Art. 4, § 5(B); R.C. § 4511.19 (2001); Rules of Evid., Rule 702. State v. Weiland, 127 Ohio Misc. 2d 138, 2004-Ohio-2240, 808 N.E.2d 930 (Mun. Ct. 2004); West’s Key Number Digest, Limitation of Actions 55.

Horizontal Gaze Nystagmus (HGN) and finger-to-nose field sobriety tests produced evidence of purely physical nature, and defendant’s performance of those tests did not compel her to testify against herself. Const. Art. 1, § 12. State v. Riddle, 149 Or. App. 141, 941 P.2d 1079 (1997).

Evidence was sufficient to support conviction for driving while intoxicated; although State did not adduce what, how much or when defendant consumed alcohol, defendant crashed his motorcycle trying to negotiate simple turn under safe driving conditions, when police officer arrived, defendant smelled of alcohol, performed simple tasks with difficulty, slurred his speech, swayed while standing, walked unsteadily, showed all six signs in horizontal gaze nystagmus test, could not perform walk-and-turn test, refused to perform one-legged stand test, admitted he had been drinking, and although defendant sustained abrasions and contusions, he did not appear to be in pain. V.T.C.A., Penal Code § 49.04. Letner v. State, 138 S.W.3d 539 (Tex. App. Beaumont 2004); West’s Key Number Digest, Limitation of Actions 355(6).

Failure of suspect to perform well on either walk-and-turn sobriety test and one-leg stand sobriety tests is only evidence of impairment, and thus, a trial court commits error when it allows an expert on administering the tests, over objection, to correlate a suspect’s performance on either of such tests to a blood alcohol content. Smith v. State, 65 S.W.3d 332 (Tex. App. Waco 2001), reh’g overruled, (Dec. 28, 2001); West’s Key Number Digest, Criminal Law 474.2.

Trooper’s visual observations of driver’s car, coupled with fellow trooper’s information that radar showed driver’s car approaching at a speed in excess of the speed limit, were sufficient to warrant a person of reasonable caution to believe that driver was speeding, such that trooper had probable cause to make initial stop of driver’s vehicle and driver’s license could be revoked under implied consent statute for refusing breath test; Department of Licensing was not required to produce foundational evidence to support the radar reading. West’s RCWA 46.20.308. Clement v. State Dept. of Licensing, 109 Wash. App. 371, 35 P.3d 1171 (Div. 1 2001), review denied, 146 Wash. 2d 1017, 51 P.3d 87 (2002); West’s Key Number Digest, Automobiles 349(2.1).

Testimony of 16-year police veteran regarding his training and experience in administering and assessing field sobriety tests provided sufficient foundation to admit officer’s testimony regarding such tests in administrative proceeding to revoke driver’s license; officer testified he had received training in conducting, and had instructed others to conduct, horizontal gaze nystagmus (HGN) test, that he did not use HGN test in isolation to determine probable cause and did not attempt to use it to extrapolate driver’s blood alcohol concentration, and that he had significant training in standardized field sobriety testing based on studies conducted by National Highway Traffic Safety Administration. Smith v. State ex rel. Wyoming Dept. of Transp., 11 P.3d 931 (Wyo. 2000); West’s Key Number Digest, Automobiles 422.1.

"A trial on a charge of driving while intoxicated may raise constitutional issues"

A trial on a charge of driving while intoxicated may raise constitutional issues, such as whether there was probable cause for the arrest, whether adequate warnings were given to the suspect as to his rights, whether there was an intelligent waiver of rights, whether there was duress sufficient to raise a defense of self-incrimination, and whether there might have been a violation of equal protection and due process guarantees. The various constitutional questions noted above are necessarily left largely unanswered, because few of such questions have been satisfactorily answered by the courts in the context of prosecutions for driving while intoxicated. Decisions of the United States Supreme Court on these constitutional issues have been rendered in cases involving felonies such as murder, burglary, theft, and possession of narcotics, but the application of such decisions to driving-while-intoxicated cases are not always clear in most instances.

At the present time, United States Supreme Court decisions do not support a contention that requiring an accused to submit to chemical intoxication tests violates his fifth amendment privilege against self-incrimination. In considering the constitutionality of a state’s implied consent statute, counsel should carefully note the impact of several United States Supreme Court decisions. In a leading case, Rochin v. California, 342 US 165, 96 L Ed 183, 72 S Ct 205, 25 ALR2d 1396, decided in 1952, police conduct in having an accused’s stomach pumped to determine if he had swallowed narcotics was held to be so objectionable that a subsequent confession was inadmissible as coerced. However, in another, later case, Breithaupt v. Abram, 352 US 432, 1 L Ed 2d 448, 77 S Ct 408, decided in 1957, results of analysis of a blood sample taken by a physician while the subject was unconscious was held to be admissible as not violating the defendant’s rights. In the famous Miranda decision, Miranda v. Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602, 10 ALR3d 974, the Supreme Court in 1966 held that, in order to render a confession admissible, warnings must be given prior to in-custody interrogation of individuals suspected of commission of a felony. In Schmerber, Schmerber v. California, 384 US 757, 16 L Ed 2d 908, 86 S Ct 1826, decided later in the same term of court, results of an analysis of a blood sample taken at a hospital while the suspect was conscious was held to be admissible in evidence as not violating due process or other constitutional safeguards.

Thus, the defense attorney should be prepared to raise all possible constitutional objections under both the federal and state constitutions. Defendants often have a double chance for acquittal on constitutional grounds—one under the federal and one under the state constitution. The state court may be more solicitous of a suspect’s rights under state constitutional provisions than was the United States Supreme Court in Schmerber v. California. Of course, this is not generally the case.

In one State circumstance, two South Dakota police officers stopped the defendant’s car after they saw him fail to stop at the stop sign. The defendant failed field sobriety tests and he was placed under arrest and read his Miranda rights. The defendant then refused to submit to a blood-alcohol test, saying that he was too drunk to pass it. South Dakota law specifically declares that refusal to submit to a blood-alcohol test “may be admissible into evidence at the trial”. Nevertheless, the defendant sought to suppress all evidence of his refusal to take the test. A South Dakota Circuit Court granted the suppression motion, holding among other things, that allowing evidence of refusal violated the defendant’s federal constitutional rights. On appeal, the South Dakota Supreme Court affirmed the suppression of the act of refusal on the grounds that the state statute, which allowed the introduction of this evidence, violated the federal and state privilege against self-incrimination. On certiorari, the United States Supreme Court reversed and remanded. In South Dakota v. Mellive (1983, US) 74 L Ed 2d 748, 103 S Ct 916, it was held that the admission into evidence of defendant’s refusal to submit to the blood-alcohol test did not offend the Fifth Amendment right against self-incrimination since the refusal to take such a test, after a police officer had lawfully requested it, was not an act coerced by the officer and since the offer of taking the test was clearly legitimate and became no less legitimate when the state offered the second option of refusing the test, with the attendant penalties for making that choice.

"Not only are driving under the influence arrests more plentiful, they are becoming more difficult to effectively defend."

Not only are driving under the influence arrests more plentiful, they are becoming more difficult to effectively defend. Within the last few years, many of the once famous “loopholes” have been tightened in an effort to successfully prosecute DUI suspects. Rhode Island’s Pimental case stands for the proposition that sobriety checkpoints are violative of the Rhode Island Constitution; however, even well established case law such as this will likely change in the years to come. With a legislature that is more and more educated about drunk driving statistics and a Supreme Court that is generally more conservative in composition than those of the past, DUI laws will inevitably evolve to obviate legal arguments that once existed. As this happens, Rhode Island Criminal Defense Lawyers will need to become more vigilant about analyzing current laws, regulations and cases that impact the legal and constitutional rights of their clients.

Check out this great article on projo.com:
Drunken driving accidents, arrests plentiful in R.I.
http://www.projo.com/news/content/2009_drunken_driving_12-29-09_09GSOV7_v48.3cf7196.html

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