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Rhode Island DRE in the news
Providence Journal, August 22, 2010
Police around the country have been taking such blood tests for decades, under various rules in different states. Back in 1966, the U.S. Supreme Court ruled that a blood sample taken because a police officer believed a California motorist was drunk did not violate the driver’s constitutional rights.
Once blood tests are taken, the issue gets complicated, as there’s no national standard on what level of various drugs causes impairment. Under Rhode Island law, the presence of certain drugs is enough to convict one of driving under the influence, but the state’s traffic-safety resource prosecutor, Jay Sullivan in the Attorney General’s Office, says there needs to be some discretion when drugs in a driver’s blood have been prescribed and taken appropriately.
Across Rhode Island, police departments that believed they should test a driver’s blood for impairment after serious and fatal crashes sought search warrants to do so, and judges granted them, according to Journal archives dating to at least 1984.
But those search warrants ground to a halt in December 2000, after the state Supreme Court ruled that state law precluded the police from obtaining them. However, Chief Justice Joseph R. Weisberger urged the General Assembly to amend the law so blood samples could again be taken from unwilling drivers.
Thus began a philosophical and legislative debate that pitted supporters, such as the state police and Mothers Against Drunk Driving, against opponents, including the Rhode Island affiliate of the American Civil Liberties Union and the Office of the Public Defender.
Then-Attorney General Sheldon Whitehouse quickly announced he was preparing legislation to allow testing. With equal swiftness, the incoming chairman of the state Senate Judiciary Committee –– Joseph A. Montalbano, a North Providence Democrat who later became Senate president –– urged caution, so as not to trample on Fourth Amendment rights, which protect residents from unreasonable search and seizure.
When the state elected a new attorney general in 2002, Patrick C. Lynch took up the cause and championed it.
In a state considered very liberal when it comes to –– as Lombardi says –– “invasive things like taking blood from people,” the battle in the General Assembly lasted nine straight years.
The bill that became law in November, nearly a decade after Weisberger urged such change, was carefully crafted, says Michael J. Healey, spokesman for the Attorney General’s Office. Of the 45 states that let the police obtain blood samples after someone is killed or seriously injured in a car crash, Healey says, Rhode Island is among 17 where they must first obtain a search warrant. To do so, they must have “probable cause.”
So what is probable cause?
“It’s a very fluid and elastic concept that changes from one situation to the next,” says Mark Neil, senior lawyer of the National Traffic Law Center, which helps prosecutors, judges and the police with traffic-safety cases. “From a legal standpoint: is it sufficient evidence to warrant a reasonable person to essentially believe and act on the information?”
In Rhode Island, the police do not have probable cause to seek a search warrant to draw blood just because someone has been involved in a fatal or serious-injury crash, says Jay Sullivan, who is not related to Richard Sullivan.
Do the police have probable cause to draw a driver’s blood when she says she mixed Methadone, a prescription drug, with marijuana?
Jay Sullivan says he cannot answer that specifically, because the question is tied too closely to the ongoing Charlestown case. But in general, he said, such an admission would tend to make a police officer “more alert to look for the signs and symptoms” of drug use.
“If they see someone isn’t able to talk or walk or find their license, they may be suspicious someone might be under the influence,” he said.
In the Charlestown crash involving Reale, Chief Shippee says his officers had no probable cause: “There were no outward signs of intoxication or being under the influence, which is a requirement for that.”
Reale’s admission of drug use that day wasn’t enough, Shippee says.
Had the officers sought a search warrant, the judge would have peppered them with questions, Lombardi says: “He’s going to ask specific questions. He’s going to ask what did you see? … Did she stumble? Did she bumble? Was her speech slurred? What did you see? And if they can’t tell him that, he’s not going to give them a warrant, as much as he probably would like to.”
In Charlestown, the police chief says he’d like to see the new law amended.
“Would it be nice to have a law that says after a fatal you have to be tested? Absolutely,” Shippee says. “… That’s what we need.”
On the other hand, the Rhode Island affiliate of the ACLU thinks even the law that passed will be challenged in court one day.
“No police officer or health-care provider should have the power to forcibly restrain an individual in order to invade their body to try to convict them of a crime,” Executive Director Steven Brown says. “… The image is disturbing, and it’s why it shouldn’t be allowed, but it is precisely what this law authorizes.”
kbramson@projo.com
Police around the country have been taking such blood tests for decades, under various rules in different states. Back in 1966, the U.S. Supreme Court ruled that a blood sample taken because a police officer believed a California motorist was drunk did not violate the driver’s constitutional rights.
Once blood tests are taken, the issue gets complicated, as there’s no national standard on what level of various drugs causes impairment. Under Rhode Island law, the presence of certain drugs is enough to convict one of driving under the influence, but the state’s traffic-safety resource prosecutor, Jay Sullivan in the Attorney General’s Office, says there needs to be some discretion when drugs in a driver’s blood have been prescribed and taken appropriately.
Across Rhode Island, police departments that believed they should test a driver’s blood for impairment after serious and fatal crashes sought search warrants to do so, and judges granted them, according to Journal archives dating to at least 1984.
But those search warrants ground to a halt in December 2000, after the state Supreme Court ruled that state law precluded the police from obtaining them. However, Chief Justice Joseph R. Weisberger urged the General Assembly to amend the law so blood samples could again be taken from unwilling drivers.
Thus began a philosophical and legislative debate that pitted supporters, such as the state police and Mothers Against Drunk Driving, against opponents, including the Rhode Island affiliate of the American Civil Liberties Union and the Office of the Public Defender.
Then-Attorney General Sheldon Whitehouse quickly announced he was preparing legislation to allow testing. With equal swiftness, the incoming chairman of the state Senate Judiciary Committee –– Joseph A. Montalbano, a North Providence Democrat who later became Senate president –– urged caution, so as not to trample on Fourth Amendment rights, which protect residents from unreasonable search and seizure.
When the state elected a new attorney general in 2002, Patrick C. Lynch took up the cause and championed it.
In a state considered very liberal when it comes to –– as Lombardi says –– “invasive things like taking blood from people,” the battle in the General Assembly lasted nine straight years.
The bill that became law in November, nearly a decade after Weisberger urged such change, was carefully crafted, says Michael J. Healey, spokesman for the Attorney General’s Office. Of the 45 states that let the police obtain blood samples after someone is killed or seriously injured in a car crash, Healey says, Rhode Island is among 17 where they must first obtain a search warrant. To do so, they must have “probable cause.”
So what is probable cause?
“It’s a very fluid and elastic concept that changes from one situation to the next,” says Mark Neil, senior lawyer of the National Traffic Law Center, which helps prosecutors, judges and the police with traffic-safety cases. “From a legal standpoint: is it sufficient evidence to warrant a reasonable person to essentially believe and act on the information?”
In Rhode Island, the police do not have probable cause to seek a search warrant to draw blood just because someone has been involved in a fatal or serious-injury crash, says Jay Sullivan, who is not related to Richard Sullivan.
Do the police have probable cause to draw a driver’s blood when she says she mixed Methadone, a prescription drug, with marijuana?
Jay Sullivan says he cannot answer that specifically, because the question is tied too closely to the ongoing Charlestown case. But in general, he said, such an admission would tend to make a police officer “more alert to look for the signs and symptoms” of drug use.
“If they see someone isn’t able to talk or walk or find their license, they may be suspicious someone might be under the influence,” he said.
In the Charlestown crash involving Reale, Chief Shippee says his officers had no probable cause: “There were no outward signs of intoxication or being under the influence, which is a requirement for that.”
Reale’s admission of drug use that day wasn’t enough, Shippee says.
Had the officers sought a search warrant, the judge would have peppered them with questions, Lombardi says: “He’s going to ask specific questions. He’s going to ask what did you see? … Did she stumble? Did she bumble? Was her speech slurred? What did you see? And if they can’t tell him that, he’s not going to give them a warrant, as much as he probably would like to.”
In Charlestown, the police chief says he’d like to see the new law amended.
“Would it be nice to have a law that says after a fatal you have to be tested? Absolutely,” Shippee says. “… That’s what we need.”
On the other hand, the Rhode Island affiliate of the ACLU thinks even the law that passed will be challenged in court one day.
“No police officer or health-care provider should have the power to forcibly restrain an individual in order to invade their body to try to convict them of a crime,” Executive Director Steven Brown says. “… The image is disturbing, and it’s why it shouldn’t be allowed, but it is precisely what this law authorizes.”
kbramson@projo.com
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