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RI: Breath test is a SI in a DUI

By John Wesley Hall, Jr.

In R.I., a breath test is a search incident. State v. DeOliveira, 2009 R.I. LEXIS 88 (June 22, 2009): Pursuant to the principles set forth in Schmerber, 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 § 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...continue to full post

Full post as published by Fourth Amendment on July 09, 2009 (boomark / email).