{"id":3232,"date":"2009-12-24T08:46:37","date_gmt":"2009-07-09T07:25:32","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-07-09T07:25:32","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3232","title":{"rendered":"RI: Breath test is a SI in a DUI"},"content":{"rendered":"

In R.I., a breath test is a search incident. State v. DeOliveira<\/a>, 2009 R.I. LEXIS 88 (June 22, 2009):<\/p>\n

Pursuant to the principles set forth in Schmerber<\/a>, however, a Breathalyzer test is considered a search incident to a lawful arrest and is, therefore, deemed reasonable within the meaning of the Fourth Amendment. Locke, 418 A.2d at 849. In Locke, this Court further noted that the consent of the defendant is irrelevant to a consideration of the constitutionality of a Breathalyzer test; but this Court in Locke further held that, pursuant to the statutory mandate set forth in G.L. 1956 \u00a7 31-27-2(b), a valid consent must be obtained from a suspect before the test results may be used at trial. Locke, 418 A.2d at 849. In the case of In re Kean, 520 A.2d 1271 (R.I. 1987), this Court recognized that the right to refuse to take a Breathalyzer test is a statutory, not a constitutional, right; but the Court nonetheless applied the same criteria to the waiver of that right as is used in analyzing the waiver of constitutional rights–namely, whether the waiver was knowing, intelligent, and voluntary. Id. at 1274. We shall conduct our analysis accordingly in the instant case.<\/p><\/blockquote>\n

Officers did not act inappropriately in detaining 12-14 people present when the police showed up to search the premises. They were outnumbered by the number of people in the place, and deference has to be granted to officers in a fluid situation like that. Muehler v. Mena<\/a> is distinguished. State v. Palmer<\/a>, 14 So. 3d 304 (La. 2009).<\/p>\n

In subpoenas related to nursing home deaths after Hurricane Katrina, documents produced under subpoena are not “seized” for purposes of La.R.S. 15:41 for return of seized property. In re a Matter Under Investigation<\/a>, 15 So. 3d 972 (La. 2009).<\/p>\n","protected":false},"excerpt":{"rendered":"

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