State v. Ensey
| Decision Date | 01 September 2005 |
| Docket Number | No. 2002-236-C.A.,2002-236-C.A. |
| Citation | 881 A.2d 81 |
| Parties | STATE v. Judith ENSEY. |
| Court | Rhode Island Supreme Court |
Virginia M. McGinn, Providence, for Plaintiff.
Paula Rosin, Providence, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
At the conclusion of a nonjury trial in the District Court, the defendant, Judith Ensey, was found guilty of driving under the influence (DUI) in contravention of G.L.1956 § 31-27-2 as amended by P.L. 1994, ch. 70, art. 35, § 7.1 Defendant Ensey then appealed to the Superior Court, where the case was tried on a de novo basis before a jury. The jury convicted her on the DUI charge, and the trial justice in the Superior Court sentenced her to serve a one-year term of imprisonment, which sentence was suspended with probation. The defendant was also assessed a fine and court costs, and her license to drive was suspended for six months. In addition, she was ordered to perform fifty hours of community service and to attend "alcohol counseling" and "DWI school."
The defendant has appealed to this Court from her Superior Court conviction.2 She contends that the trial justice erred by admitting into evidence the results of a breathalyzer test, because (she alleges) the prosecution failed to present sufficient evidence that the test was performed in accordance with the criteria set forth in § 31-27-2(c). The defendant further contends that the trial justice's jury instructions concerning the breathalyzer machine in effect constituted a directed verdict of guilt and also constituted an improper comment on the evidence that impermissibly shifted the burden of proof from the prosecution to the defense. In our judgment, the Superior Court trial was not tainted with reversible error, and we therefore affirm the judgment of conviction.
At defendant's jury trial, John Carroll4 of the Central Falls Police Department testified that, at the time of defendant's arrest in 1998, he was working as a uniformed patrol officer assigned to the midnight-to-8 a.m. shift on the east side of the City of Central Falls. Officer Carroll testified that one of his duties as a patrol officer was to ensure that patrons of the local bars and restaurants would leave those establishments at closing time (1 a.m.) in a timely manner.
Shortly after 1 a.m. on May 9, 1998, while Officer Carroll was in the process of performing this duty, he was standing in the parking/breakdown lane of a street in Central Falls outside a restaurant called Benjamin's Bar & Grille. Officer Carroll testified that, while he was speaking with an unidentified male at that location, his attention was diverted from his conversation when he observed a vehicle, whose registration plate was LQ 512, traveling southbound on Broad Street at a rate of speed in excess of the speed limit of twenty-five miles an hour. Officer Carroll testified that the vehicle then swerved towards the parking/breakdown lane in the direction of two vehicles that were parked directly in front of Benjamin's Bar & Grille. The driver of the speeding vehicle avoided the parked vehicles by swerving back towards the travel lane, but the driver then swerved back towards Officer Carroll, who had to jump "onto the sidewalk to avoid being hit."
While he was on the sidewalk, Officer Carroll observed his shift commander, Sergeant Bruce J. Ogni, driving by.5 Officer Carroll testified that he contacted Sergeant Ogni by portable radio and told him that he had almost been struck by a vehicle whose registration plate was LQ 512. He requested that Sergeant Ogni pull the vehicle over.
Sergeant Ogni testified that he saw the subject vehicle within seconds after receiving Officer Carroll's request, and he immediately directed the driver of the vehicle to pull over to the side of the road. Sergeant Ogni further testified that Officer Carroll arrived at the scene "a second after" and that, while he (Sergeant Ogni) ensured that there were no traffic problems, Officer Carroll approached the driver of the vehicle.
Officer Carroll testified as follows concerning his observations at that point:
Officer Carroll identified defendant Judith Ensey to the jury as being the driver of the vehicle. He testified that, as he was speaking with her, "she was mumbling." He also testified that he noticed that "her face was very flushed, very red." He then testified that, while complying with his request that she exit the vehicle, defendant "almost fell into the lane of travel." According to Officer Carroll, defendant Ensey "then had to grab the door, the operator's side door, to steady herself." Officer Carroll said that he "ushered her to the sidewalk area" and that he then "asked her to complete a set of field sobriety tests due to the fact that [he] had suspicions about her being under the influence." Those field sobriety tests were: the horizontal gaze nystagmus test, the "finger-to-nose" test, and the Rhomburg balance test.
Officer Carroll testified that, rather than touching her nose during the "finger-to-nose" test, defendant touched her left eye with her left finger and the middle of her forehead with her right finger.
Officer Carroll further testified that he then explained the Rhomburg balance test to defendant, telling her that she must stand with her feet together and hands down by her side, close her eyes, and lean her head back for thirty seconds. Officer Carroll also testified that, when defendant attempted to perform that test, she "was unstable * * * at that point and fell backwards into a chain-linked fence that was directly behind her."
After he saw defendant fall into the fence, Officer Carroll became concerned for her safety, and he immediately halted the field sobriety testing. He arrested defendant Ensey for suspicion of driving under the influence of liquor or drugs. Officer Carroll testified that he advised defendant of her rights and then transported her to the police station for processing.6 At the Central Falls police station, Officer Carroll read defendant the words printed on a form entitled "RIGHTS FOR USE AT STATION."7 The defendant waived her rights by initialing each paragraph on the form and by signing the bottom of the form to acknowledge that she had been read her rights. Her signature also indicated her agreement to submit to a chemical test.8 The defendant did not seek to take advantage of her right to make a telephone call.
Officer Carroll testified that, employing an "Intoxilyzer 5000" machine, he administered a breathalyzer test to defendant in order to determine her blood-alcohol concentration (BAC).9 He further testified that the breathalyzer test consisted of two phases separated by a minimum of thirty minutes; he added that, before administering the test to defendant, he observed her for fifteen minutes to ensure that she did not ingest anything or act in any other way that could have had an adverse effect on the results.
Officer Carroll testified that he administered the first phase of the breathalyzer test at 1:44 a.m. The first phase resulted in a BAC reading of 0.161 percent. Officer Carroll administered the second phase of the breathalyzer test approximately thirty four minutes later. The second phase of the breathalyzer test resulted in a BAC reading of 0.145 percent.10
Officer Carroll proceeded to issue to defendant a written notification of the alleged offense (a "ticket"), charging her with the offense of driving under the influence of alcohol or drugs in violation of § 31-27-2.11 It is from her conviction by the Superior Court jury on that charge that defendant now appeals.
The defendant raises two issues on appeal. She first contends that the results of the breathalyzer test were inadmissible because the prosecution failed to provide adequate evidence that the solution used to test the accuracy of the "Intoxilyzer 5000" breathalyzer machine was properly constituted; and, further developing that contention, defendant argues that, because the prosecution had allegedly failed to lay the proper evidentiary foundation, the trial justice erred in admitting the breathalyzer test results. The defendant's second appellate contention deals with the instructions to the jury in her case. She argues that the trial justice improperly instructed the jury about the breathalyzer test results and that those instructions in effect directed a verdict in favor of the prosecution and impermissibly shifted the burden of proof from the prosecution to the defense.
The Admissibility of the Breathalyzer Test Results.
At the time defendant was arrested, § 31-27-2(b)(1) provided in pertinent part:
In State v. Lusi, 625 A.2d 1350 (R.I.1993), we specifically commented upon the importance of the chemical analysis provisions of § 31-27-2(b) as a means of assisting law enforcement in its combat against drunk driving. We stated in that case: "With the enactment of § 31-27-2, as amended by P.L. 1983, ch. 227, § 1 [subsection (b)(1)], the Legislature expressed a clear intent to rely on...
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