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State v. McKenna4/3/1998
This case came before the Supreme Court on March 2, 1998, pursuant to an order directing both parties to appear and show cause why the issues presented by this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown; therefore, the issues will be decided at this time.
The defendant in this case, Ward G. McKenna, has appealed from a judgment of conviction of operating a vehicle while under the influence of alcohol in violation of G.L. 1956 § 31-27-2, following a jury trial in Washington County Superior Court.
In the early evening of February 22, 1995, defendant was driving his car in the town of North Kingstown. As he approached a line of vehicles, defendant failed to control his vehicle and crashed into the rear of an oil company's van. Patrolman Kevin Darcy (Darcy) responded to a call giving notice of the accident. When Darcy arrived at the scene, he approached defendant, who was seated in his vehicle. Once defendant exited the vehicle, Darcy observed that defendant smelled of alcohol, exhibited slurred speech, had red and glassy eyes, and was having difficulty maintaining his balance.
Following these observations, Darcy administered a series of field-sobriety tests, placed defendant under arrest for driving under the influence , and transported him to the North Kingstown police station. There, two separate breathalyzer tests were performed. The first test measured defendant's blood-alcohol concentration (BAC) at 0.105 percent, and the second test produced a BAC reading of 0.093 percent.
Prior to trial, defendant moved to dismiss the charge, claiming that the second breathalyzer reading of 0.093 percent precluded a guilty verdict on a charge of driving under the influence . The motion was denied by the trial Justice.
On May 1, 1996, following a jury trial, defendant was found guilty of driving under the influence in violation of § 31-27-2. The defendant's subsequent motion for a new trial was denied, and a judgment of conviction was entered on June 24, 1996. The defendant has appealed that judgment.
The defendant's first claim was that the trial Justice erred in denying his motion to dismiss, arguing that a breathalyzer result of 0.093 percent precluded a guilty verdict because the standard for establishing intoxication is a breathalyzer reading of 0.10 percent. We reject this argument because it conflicts with this Court's holdings in State v. DiCicco, No. 97-118-C.A. (R.I., filed January 27, 1998), and State v. Lusi, 625 A.2d 1350 (R.I. 1993), and the plain language of § 31-27-2. In Lusi this Court concluded that the trier of fact may draw an inference from the results of a breathalyzer test that a defendant's BAC at the time of the test was the same as at the time of the driving. 625 A.2d at 1355. In DiCicco, we stated that
"if a test results in a BAC of less than 0.10 percent, a conviction under §§ 31-27-2 or 31-27-2.2 shall be sustained if the totality of other competent evidence establishes beyond a reasonable doubt that a person was under the influence of `intoxicating liquor, drugs, toluene, or any controlled substance as defined in chapter 28 of title 21, to a degree which rendered such person incapable of safely operating a vehicle.'" DiCicco, slip op. at 11.
Here the jury found that the totality of the admissible evidence established beyond a reasonable doubt that defendant was under the influence of alcohol to a degree that rendered him incapable of safely operating a vehicle. Therefore, the denial of defendant's motion to dismiss was correct.
The defendan
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