1156 R. I. 764 ATLANTIC REPORTER, 2d SERIES · 2019. 9. 28. · 1156 R. I. 764 ATLANTIC REPORTER,...

1156 764 ATLANTIC REPORTER, 2d SERIESR. I.

STATE

v.

Lisa A. DiSTEFANO.

No. 99–119–C.A.

Supreme Court of Rhode Island.

Dec. 20, 2000.

Defendant was charged with drivingunder the influence of liquor or drugs(DUI), death resulting, and various countsof possession of a controlled substance.Defendant moved to suppress evidence ofblood test results. The Superior Court,Kent County, Krause, J., stayed proceed-ings and certified questions. The SupremeCourt, Goldberg, J., held that: (1) law en-forcement officials may not obtain warrantto seize a nonconsenting motorist’s bloodfor alcohol or drug testing; (2) statutoryban on warrant to seize a nonconsentingmotorist’s blood does not unconstitutional-ly limit authority of judiciary to issue war-rants; and, per dissenting opinion of Bour-cier, J., for a majority of the Court, (3)Timms decision on admissibility of bloodalcohol test given at hospital does not baradmission of results of breath test or bloodor urine tests that were seized withoutmotorist’s consent via a judicially autho-rized search warrant.

Questions answered.

Weisberger, C.J., concurred and filedopinion.

Flanders, J., concurred in part anddissented in part and filed opinion.

Bourcier, J., dissented and filed opin-ion in which Leberberg, J., joined.

1. Statutes O193

One of statutory aids to constructionis a maxim entitled ‘‘noscitur a sociis,’’ theliteral translation of which is ‘‘it is knownfrom its associates.’’

2. Statutes O193

Under doctrine of ‘‘noscitur a sociis,’’the meaning of questionable or doubtfulwords or phrases in statute may be ascer-tained by reference to meaning of otherwords or phrases associated with it.

See publication Words and Phrasesfor other judicial constructions anddefinitions.

3. Automobiles O418

Statute governing a motorist’s refusalto submit to chemical test applies to anyperson who operates a motor vehicle instate, and applies to every arrest for driv-ing under the influence (DUI), whether itbe felony or misdemeanor, and upon refus-al of chemical test, no test shall be given.Gen.Laws 1956, §§ 31–27–2(a, c), 31–27–2.1, 31–27–2.2.

4. Automobiles O332, 355(6)

In addition to statutory penalties forrefusal to submit to test for presence ofintoxicating liquor or drugs, a driver maynonetheless be charged with driving underthe influence (DUI), felony or otherwise,and a conviction can rest on evidence otherthan blood alcohol content (BAC) evidence,including opinion of experienced officerthat driver gave every appearance of in-toxication. Gen.Laws 1956, §§ 31–27–2(a,c), 31–27–2.1, 31–27–2.2.

5. Automobiles O418

Statute governing a motorist’s refusalto submit to chemical test precludes mem-bers of law enforcement from obtaining ajudicially authorized search warrant toseize a motorist’s blood for alcohol or drugtesting. Gen.Laws 1956, §§ 31–27–2(a, c),31–27–2.1, 31–27–2.2.

6. Courts O152

Power of superior court is statutory inorigin and cannot be extended by judicialinterpretation, nor by a policy adopted byexecutive branch of state government.Const. Art. 10, § 2.

1157R. I.STATE v. DISTEFANOCite as 764 A.2d 1156 (R.I. 2000)

7. Searches and Seizures O103.1Scope of superior court’s authority to

issue search warrants is delineated by leg-islature, in which all power not explicitlygranted to another branch of governmentresides. Const. Art. 10, § 2; Gen.Laws1956, §§ 3–12–4, 4–1–19, 11–19–24, 11–34–4, 12–5–2, 12–5.1–4, 12–5.2–2, 19–26–13,30–9–11.

8. Automobiles O414 Constitutional Law O52 Searches and Seizures O12, 103.1

Statute precluding members of lawenforcement from obtaining a judicially au-thorized search warrant to seize a motor-ist’s blood for alcohol or drug testing whenmotorist has refused consent to testingdoes not unconstitutionally limit authorityof judiciary to issue warrants; authority toissue warrants emanates from General As-sembly, and General Assembly has notseen fit to vest superior court or districtcourt with that power. Const. Art. 1, § 6;Art. 5; Gen.Laws 1956, §§ 12–5–1, 12–5–2,31–27–2.1.

Per dissenting opinion of Bourcier,J., with two Justices joining.

9. Automobiles O411Timms decision concerning admissi-

bility of blood alcohol test given a defen-dant at hospital in light of Confidentialityof Health Care Information Act does notbar admission at trial of results of breathtest or blood or urine tests that wereseized without motorist’s consent via a ju-dicially authorized search warrant, in pros-ecution for driving under the influence ofliquor or drugs, death resulting. (Per dis-senting opinion of Bourcier, J., for a ma-jority of the Court.) Gen.Laws 1956,§§ 5–37.3–4, 31–27–2(c), 31–27–2.2.

Lauren Sandler Zurier, Aaron L. Weis-man, Providence, for plaintiff.

Randy Olen, Providence, John F. Cicil-line, Bristol, for defendant.

Present: WEISBERGER, C.J.,LEDERBERG, BOURCIER,FLANDERS, and GOLDBERG, JJ.

OPINION

GOLDBERG, J.

This case came before the Court pursu-ant to three questions certified from theSuperior Court in accordance with G.L.1956 § 9–24–27. The Superior Court asksus to consider for the first time whetherG.L.1956 § 31–27–2(c) should be interpret-ed to preclude, for violations of § 31–27–2.2 (driving under the influence, death re-sulting), the admission at trial of the re-sults of breath, blood or urine tests whenthe samples were seized without the defen-dant’s consent, but pursuant to a searchwarrant issued by a justice of the SuperiorCourt.

FACTS AND PROCEDURALHISTORY

The essential facts of this case are un-disputed. The defendant, Lisa A. Di-Stefano (defendant), was charged by infor-mation with one count of driving under theinfluence of liquor or drugs (DUI), deathresulting, in violation of § 31–27–2.2, andvarious counts of possession of a controlledsubstance, as the result of a tragic accidenton June 15, 1997. At about eight o’clockthat night, defendant drove from the ShellGas station onto Post Road in Warwick,and her motor vehicle collided with a mo-torcycle driven by David Smith, who diedas a result of the injuries he suffered inthe accident. An on-scene investigationensued; defendant was arrested for suspi-cion of operating a motor vehicle whileunder the influence of drugs or alcohol.

Subsequently, defendant was taken tothe Warwick police station, where she sub-mitted to a breath test, the results ofwhich indicated a blood alcohol content(BAC) of .026. Sergeant Peter Johnson, adrug evaluation expert, performed a druginfluence evaluation on defendant and con-


cluded that she was under the influence ofa central nervous system stimulant. Ser-geant Johnson asked defendant to submitto a blood test to determine the presenceor absence of controlled substances. Thedefendant refused. The Warwick policethen obtained a search warrant from ajustice of the Superior Court to extractsamples of defendant’s blood and urine.The blood test, taken from a sample ob-tained at Kent County Hospital, revealedthe presence of marijuana and cocaine.

Before trial, defendant filed a motion tosuppress the introduction of the test re-sults on the ground that her blood wasdrawn without her consent, in violation of§ 31–27–2(c), and therefore, the test re-sults were inadmissible, even though thepolice had obtained a judicially authorizedsearch warrant. The Superior Courtstayed further proceedings and propound-ed the following questions of law to thisCourt:

1. ‘‘In view of State v. Timms, 505 A.2d1132 (R.I.1986), should R.I.Gen.Laws§ 31–27–2(c) be interpreted to preclude,in a case involving an alleged violation ofR.I.Gen.Laws § 31–27–2.2 (driving un-der the influence, death resulting), theadmission at trial of the results ofbreathalyzer, blood or urine tests at tri-al, when the breath, blood or urine sam-ples were seized without defendant’sconsent and pursuant to a judicially au-thorized search warrant?’’2. ‘‘Does the statutory language ofR.I.Gen.Laws § 31–27–2.1, the Breatha-lyzer Refusal Statute, preclude membersof law enforcement from obtaining a ju-dicially authorized search warrant toseize a defendant’s blood for alcohol ordrug testing?’’3. ‘‘If R.I.Gen.Laws § 31–27–2.1 doespreclude law enforcement from obtain-ing a search warrant, is this an unconsti-tutional limitation on the judicial author-ity to issue search warrants as provided

in Article 5 of the Rhode Island Consti-tution and R.I.Gen.Laws § 12–5–1?’’

RHODE ISLAND’S DRUNK–DRIVINGLAWS—BACKGROUND

Although drunk-driving statutes haveexisted for some time, the collective aware-ness of the people of the State of RhodeIsland led to an overhaul of the state’sdrunk-driving laws in the early 1980s. In1982, the offense of driving under the in-fluence of intoxicating liquor (DUI) wasupgraded to a misdemeanor, and the ne-cessity of producing competent evidence ofintoxication in addition to proof of a defen-dant’s blood alcohol level was eliminated.1

A year later, the DUI statute, § 31–27–2,was further amended by the addition ofsubsection (b), which provided that anyperson charged with DUI, ‘‘whose bloodalcohol concentration is one-tenth of 1% ormore by weight as shown by a chemicalanalysis of a blood, breath or urine sampleshall be guilty’’ of DUI.2 In 1983, all statu-tory presumptions against a finding of in-toxication were deleted from § 31–27–2.1,in an amendment entitled ‘‘Revocation oflicense upon refusal to submit to chemicaltest.’’ 3 This amendment relieved the stateof the necessity of producing expert testi-mony that demonstrated the effects of agiven blood alcohol concentration on theaccused. See State v. Lussier, 511 A.2d958, 960 (R.I.1986). Further, the GeneralAssembly enacted two additional felony of-fenses at that time, § 31–27–1.1, entitled‘‘Driving so as to endanger, resulting inpersonal injury,’’ and § 31–27–2.2, entitled‘‘Driving under the influence of liquor ordrugs, resulting in death.’’

RHODE ISLAND’S DRUNK–DRIVINGLAWS—PRESENT DAY

In the case at bar, defendant wascharged under the current version of

1. P.L.1982, ch. 176, § 1.

2. P.L.1983, ch. 227, § 1.

3. P.L.1983, ch. 228, § 1.


§ 31–27–2.2,4 driving under the influenceof liquor or drugs, death resulting, a felo-ny. Although this statute defines thecrime of DUI, death resulting, and pre-scribes the punishment for that offense, itdoes not set forth the methods of proof tobe used in determining whether the crimewas committed. Rather, § 31–27–2(c) 5

provides that evidence of the amount ofintoxicating liquor or drugs, as shown bychemical analysis of the defendant’s blood,breath, or urine, is inadmissible unless thedefendant has consented to the test.However, this subsection specifically refer-ences § 31–27–2(a), misdemeanor DUI,and makes no reference to felony DUIoffenses. Therefore, the dispositive ques-tion for this Court is whether the Legisla-ture intended to exclude nonconsensualtest results in DUI felony cases by explic-itly including the consent requirement formisdemeanor prosecutions and implicitlyincluding the requirement in felony prose-cutions. For the reasons that follow, theChief Justice and I conclude that thisCourt’s decisions in State v. Timms, 505A.2d 1132 (R.I.1986), and State v. DiCicco,707 A.2d 251 (R.I.1998), compel us to an-swer this question in the affirmative.

Our holding in Timms, in which we es-poused the well-known canon of statutoryconstruction in pari materia (statutes re-

lating to the same subject matter shouldbe construed together for consistency andto effectuate the policy of the law), wouldseem to indicate that consent would benecessary to make blood tests admissible,even in cases of DUI, death resulting.Timms, 505 A.2d at 1135. Although theissue before us in Timms involved a differ-ent public safety statute, namely § 31–27–1, entitled ‘‘Driving so as to endanger,resulting in death,’’ our analysis of the twocomparable statutes applies just as forciblyin this case. In Timms, we consideredwhether the actual consent requirement in§ 31–27–2 would apply, or whether a writ-ten consent form, in accordance with theConfidentiality of Health Care InformationAct, was required for hospital personnel toobtain defendant’s blood. Timms, 505A.2d at 1134–35. We stated:

‘‘Although § 31–27–1 *** does not ex-plicitly require that the defendant con-sent to the taking of a blood test beforethat test may be introduced as evidencein a criminal prosecution, the Legisla-ture must have intended it to include theconsent safeguards explicitly provided in§ 31–27–2. Both statutes concern thesame subject matter, namely driving in amanner so as to threaten public safety.Furthermore, in addition to the already-

4. General Laws 1956 § 31–27–2.2 provides,in pertinent part, that:

‘‘(a) When the death of any person otherthan the operator ensues as a proximateresult of an injury received by the operationof any vehicle, the operator of which isunder the influence of any intoxicating li-quor, toluene, or any controlled substance*** the person so operating the vehicle shallbe guilty of ‘driving under the influence ofliquor or drugs, resulting in death.’

‘‘(b) Any person charged with the com-mission of the offense set forth in subsec-tion (a) shall, upon conviction, be punishedas follows:

(1) Every person convicted of a first vio-lation shall be punished by imprisonment inthe state prison for not less than five (5)years ***.’’

5. Section 31–27–2(c) provides, in pertinentpart, that:

‘‘In any criminal prosecution for a viola-tion of subsection (a) of this section, evi-

dence as to the amount of intoxicating li-quor, toluene, or any controlled substance*** in the defendant’s blood at the timealleged as shown by a chemical analysis ofthe defendant’s breath, blood, or urine orother bodily substance shall be admissibleand competent, provided that evidence ispresented that the following conditionshave been complied with:

(1) The defendant has consented to thetaking of the test upon which the analysis ismade.’’Section 31–27–2(a) provides that:

‘‘Whoever operates or otherwise drivesany vehicle in the state while under theinfluence of any intoxicating liquor, drugs,toluene, or any controlled substance as de-fined in chapter 28 of title 21, or any com-bination thereof, shall be guilty of a misde-meanor and shall be punished as providedin subsection (d) of this section.’’


enacted §§ 31–27–1 and 31–27–2, theLegislature subsequently created § 31–27–2.2, ‘Driving under the influence ofliquor or drugs, resulting in death.’ Theconsent safeguards in § 31–27–2.2 arealso not explicitly in its text, yet theLegislature would not have enacted twoseparate driving-under-the-influencesections, intending that the consentsafeguards apply only to one. ‘It fol-lows that if a mechanical application of astatutory definition produces an absurdresult or defeats legislative intent, thiscourt will look beyond mere semanticsand give effect to the purpose of the act.’*** Thus ascertaining the intent of theLegislature, we are duty bound to giveeffect to that intent.’’ Timms, 505 A.2dat 1135–36. (Emphasis added.)

Moreover, in DiCicco, a DUI death re-sulting case, we declared that, ‘‘[t]hewrong proscribed by § 31–27–2 is identicalto that in § 31–27–2.2, namely, operating amotor vehicle while ‘under the influence ofany intoxicating liquor, toluene, or anycontrolled substance as defined [by law],’ ’’and accordingly, we held that, ‘‘the well-known canon of statutory construction inpari materia dictates that similar statutesshould be interpreted similarly.’’ DiCicco,707 A.2d at 253–54. Further, in State v.St. Jean, 554 A.2d 206, 211 (R.I.1989), acase of DUI, death resulting, we unequivo-cally declared that consent was a conditionprecedent to admissibility.

This Court has stated in scores of casesthat when a statute is clear and unambigu-ous, there is no room for statutory inter-pretation and the language of the statutemust be given its plain and literal mean-ing. See, e.g., RIH Medical Foundation,Inc. v. Nolan, 723 A.2d 1123, 1126 (R.I.1999); State v. Peterson, 722 A.2d 259, 264

(R.I.1998); Accent Store Design, Inc. v.Marathon House, Inc., 674 A.2d 1223, 1226(R.I.1996). One of the earlier cases thatset forth this proposition in colorful lan-guage was Kastal v. Hickory House, Inc.,95 R.I. 366, 187 A.2d 262 (1963), in whichthe Court commented:

‘‘Only when the legislature sounds anuncertain trumpet may the court movein to clarify the call. But when the callis clear and certain as it is here we maynot consider whether the statute as writ-ten comports with our ideas of justice,expediency or sound public policy. Insuch circumstances that is not thecourt’s business.’’ Id. at 369, 187 A.2dat 264–65 (citing Blais v. Franklin, 31R.I. 95, 77 A. 172 (1910)).

Moreover, we are cognizant that in thefourteen years since our decision inTimms, the General Assembly has amend-ed § 31–27–2 on nineteen occasions 6 andamended § 31–27–2.1 four times,7 but hasnever revisited the issue of consent as aprecondition to admissibility.

It is interesting to note that in the sameyear it enacted § 31–27–2.2, the GeneralAssembly also enacted a new subsection,§ 31–27–2.3, entitled ‘‘Revocation of li-cense upon refusal to submit to prelimi-nary breath test.’’ This section, which ispositioned beside § 31–27–2.2, providesthat when a law enforcement officer hasreason to believe that a person is drivingor has actual physical control of any motorvehicle in this state while under the influ-ence of alcohol, the officer may requiresuch person to submit to a preliminarybreath analysis. If the results of the pre-liminary breath analysis are positive, thenthe officer may arrest the driver and pro-ceed to take further tests pursuant to

6. P.L.1986, ch. 275, § 1; P.L.1986, ch. 433,§ 1; P.L.1986, ch. 494, § 2; P.L.1986, ch.508, § 1; P.L.1989, ch. 149, § 1; P.L.1990,ch. 329, § 1; P.L.1990, ch. 496, § 1; P.L.1991, ch. 65, § 1; P.L.1992, ch. 133, art. 37;§ 6; P.L.1992, ch. 133, art. 94, § 1; P.L.1992, ch. 405, § 1; P.L.1992, ch. 418, § 5;P.L.1993, ch. 138, art. 26, § 3; P.L.1994, ch.70, art. 35, § 7; P.L.1995, ch. 370, art. 14,

§ 7; P.L.1996, ch. 224, § 1; P.L.1996, ch.263, § 1; P.L.1998, ch. 91, art. 1, § 3; P.L.1999, ch. 360, § 1.

7. P.L.1986, ch. 433, § 1; P.L.1986, ch. 508,§ 1; P.L.1990, ch. 329, § 1; P.L.1994, ch. 70,art. 35, § 7.


§ 31–27–2.1. These further tests are sub-ject to the safeguards recognized inTimms, as required by § 31–27–2. Thisstatute further provides that if a personrefuses to submit to this preliminarybreath test, such person would be guilty ofan infraction and subjected to the penaltyspecified in G.L.1956 § 31–41–4, whichprovides for suspension of a driver’s li-cense and fines to be imposed in the Traf-fic Tribunal.8

[1, 2] One of the statutory aids to con-struction is a maxim entitled noscitur asociis, the literal translation of which is‘‘[i]t is known from its associates.’’ Black’sLaw Dictionary 1060 (6th ed.1990). Thedefinition goes on to state that, ‘‘[u]nderthe doctrine of ‘noscitur a sociis,’ themeaning of questionable or doubtful wordsor phrases in a statute may be ascertainedby reference to the meaning of otherwords or phrases associated with it.’’ Id.(Emphasis added.) Thus, an application ofthis doctrine might cause one to construethe juxtaposition of §§ 31–27–2.2 and 31–27–2.3 as statutes that are interacting.Certainly, the Timms court determinedthat the consent safeguards provided in§ 31–27–2 were applicable to the felonycharge set forth in § 31–27–1, driving soas to endanger, death resulting. It cannotbe said that such a construction is unrea-sonable, or that it amounts to judicialamendment of clear and unambiguous leg-islative pronouncements. With this back-ground in mind, we shall now respond tothe certified questions.

DISCUSSION

I

Questions One and Two

Question one requires us to determinewhether, in view of Timms, § 31–27–2(c)should be interpreted to preclude the ad-mission of the results of breath, blood orurine tests in cases of DUI, death result-

ing, when the evidence has been seizedwithout consent but with a judicially autho-rized search warrant. Question two asksus to determine whether the ‘‘none shall begiven’’ language contained in the refusalstatute, § 31–27–2.1, precludes membersof law enforcement from obtaining asearch warrant to seize blood for alcoholand drug testing. Inasmuch as the answerto question one is inextricably linked to theissue raised by question two, the issuerespecting the admissibility of blood,breath or urine tests at any DUI trial,misdemeanor or felony, must begin withan examination of § 31–27–2.1.

A

Refusal to Submit to a Chemical Test

Section 31–27–2.1, entitled ‘‘Refusal tosubmit to chemical test,’’ provides in sub-section (a) that, ‘‘[i]f a person having beenplaced under arrest refuses upon the re-quest of a law enforcement officer to sub-mit to the tests, as provided in § 31–27–2,as amended, none shall be given * * *.’’(Emphasis added.) This statutory prohibi-tion against a chemical test in the absenceof actual consent has never been amendedby the General Assembly, and applies, ac-cording to the statute, to ‘‘[a]ny personwho operates a motor vehicle within thisstate * * *.’’ Id. Although this Court hasheld that the implied consent required by§ 31–27–2.1 only is applicable in licenserevocation proceedings and cannot be sub-stituted for actual consent necessary to theadmissibility of the test results, we neverhave held that the mandate that no testshall be given is inapplicable in DUI cases,felony or otherwise. In fact, we neverhave been called upon to decide the appli-cability of the mandate ‘‘none shall be giv-en.’’

In its brief, the state pointed to State v.Berker, 120 R.I. 849, 391 A.2d 107 (1978),as support for its position that the prohibi-tion against a nonconsensual test in § 31–

8. General Laws 1956 chapter 41 of title 31was repealed by P.L.1999, ch. 218, art. 2, § 1.

See G.L.1956 § 31–41.1–4, entitled ‘‘Scheduleof violations.’’


27–2.1 has no bearing upon the questionsbefore us today. We respectfully disagree.In Berker, after the defendant’s arrest wasdeclared illegal, the state sought to sustainthe admissibility of his test results on theground of actual consent, suggesting thatthe implied consent provisions of § 31–27–2.1 were a proper substitute for actualconsent. We rejected this argument anddeclared that, ‘‘[it] is clear that the consentdescribed in section 31–27–2.1 is applicableonly in license revocation proceedings,’’and cannot serve to satisfy the actual con-sent necessary to admissibility in DUIcases. Berker, 120 R.I. at 857, 391 A.2d at112. It is important to note that the de-fendant in Berker did not refuse to submitto a test, and this Court was not calledupon to interpret that portion of the stat-ute that provides that, upon a driver’srefusal to submit to a test, ‘‘none shall begiven.’’ We have never held that this clearand unambiguous prohibition against com-pelling a driver to submit to a test isinapplicable in DUI cases, felony or misde-meanor. Indeed, were we to do so, such aholding would render that portion of thestatute meaningless, in clear violation ofour rules of statutory construction.

Although we often have stated that theDUI and the refusal statutes are two sepa-rate and distinct offenses for which thereis no double-jeopardy bar, State v. Jen-kins, 673 A.2d 1094, 1097 (R.I.1996), thereis nonetheless an important temporal dis-tinction between the two. The offense ofrefusal under § 31–27–2.1 can arise onlyafter a driver had been arrested, informedof his or her rights, asked to submit to achemical test, and refused, whereas DUIcases begin with an arrest based uponprobable cause to believe that the driverhad been driving while under the influenceof alcohol or drugs, too often resulting indeath or serious injury. An officer’s re-

quest that a driver submit to a chemicaltest is one of the first steps in the investi-gation of a drunk-driving fatality. Al-though the offense of DUI, death result-ing, already has been committed, unlessand until the suspect actually refuses tosubmit to a test, he or she has not commit-ted the additional offense of refusal, atwhich point the prohibition against compel-ling a test becomes operable.

[3] The clear language of § 31–27–2.1(a) requires that, ‘‘[a]ny person who op-erates a motor vehicle within this stateshall be deemed to have given his or herconsent, to chemical tests of his or herbreath, blood, and/or urine for the purposeof determining the chemical content of hisor her body fluids or breath,’’ and that,‘‘[i]f a person having been placed underarrest refuses upon the request of a lawenforcement officer to submit to the tests,as provided in § 31–27–2, as amended,none shall be given, but an administrativejudge of the [traffic tribunal shall be noti-fied].’’ (Emphasis added.) Thus, it isclear to us that the implied consent statutecontained in § 31–27–2.1 applies to anyperson who operates a motor vehicle inthis state, and applies to every arrest forDUI, whether it be felony or misdemean-or, and that upon refusal, no test shall begiven. It is inconceivable that the Legisla-ture would cloak a driver charged with thelesser offense of misdemeanor DUI withthe protections afforded by § 31–27–2.1,and not afford those same protections to amotorist accused of the more serious felo-ny offenses.

[4] We note that in addition to thestatutory penalties for refusal,9 a drivermay nonetheless be charged with DUI,felony or otherwise, and a conviction canrest on evidence other than BAC evidence,including the opinion of the experienced

9. Section 31–27–2.1(a) provides that if a per-son refuses to submit to a test, ‘‘an adminis-trative judge of the [traffic tribunal] *** shallpromptly order that the person’s operator’slicense or privilege to operate a motor vehiclein this state be immediately suspended and

that the person’s license be surrendered with-in five (5) days of notice of suspension,’’ and afine and license suspension will follow, theamount and length of which is determinateupon whether the driver had previously vio-lated this statute.


officer that the driver gave every appear-ance of intoxication. See DiCicco, 707A.2d at 255. However, nothing in § 31–27–2.1 or in the case law of this statesuggests in any way that a driver who hasrefused to submit to a test can be com-pelled to submit against his or her will,whether or not the officer is armed with asearch warrant. The words ‘‘none shall begiven’’ are plain and unambiguous, andevince the intent of the General Assemblyof this state that consent to a test is thelynch pin to admissibility.

We reject the state’s argument that thephrase ‘‘none shall be given’’ has no appli-cability beyond the issue of whether adriver may be charged with refusal under§ 31–27–2.1. At oral argument, the statewas unable to enunciate any police depart-ment or Attorney General policy respect-ing cases in which the defendant refuses tocooperate with the medical technician andforcibly resists the extraction of blood orurine. The state was unable to explainwhat the response of the police would be incases of physical resistance by the suspect,nor was the state able to explain underwhat statutory authority hospital person-nel can be required to extract blood orurine from a driver who resists, or wheth-er the police departments have agreed toindemnify the innocent medical techniciansin the state’s emergency rooms againstsubsequent claims of assault or medicalmalpractice for performing a medical pro-cedure without the consent of the patient.

Further, the state was unable to indicatewhether the Warwick police or the Attor-ney General have developed any policiesand procedures relative to the amount offorce and restraint that may be exertedupon an intoxicated individual who refusesto cooperate. Nor has there been anymention of the real danger a cocktail ofblood, needles, and a resistant, intoxicatedmotorist presents to those who attempt tosubdue the suspect in order to draw blood.Indeed, when asked these questions at oralargument, the attorney for the state ac-knowledged the need for greater consider-

ation of these issues. The question we askis, consideration by whom? Certainly notthis Court, nor a member of the ExecutiveBranch of state government, nor the localpolice departments. We are satisfied thatthis area is clearly within the province ofthe General Assembly.

[5] Accordingly, a majority of themembers of the Court conclude that thelanguage ‘‘none shall be given’’ is plain andunambiguous and becomes operative aftera suspect refuses a chemical test, and that,upon such a refusal, a test shall not begiven, with or without a warrant, to ‘‘[a]nyperson who operates a motor vehicle with-in this state,’’ pursuant to § 31–27–2.1(a).

B

Forcible Seizure of a Suspect’s Blood

We are equally satisfied that, in additionto the prohibition contained in § 31–27–2.1, there are sound public policy reasonsbehind the requirement that a defendantconsent to a test before one may be under-taken. In State v. Locke, 418 A.2d 843(R.I.1980), a DUI case, the defendant al-leged that, notwithstanding his consent toa breath test, the police subjected him toan unreasonable search and seizure. Inreliance on Schmerber v. California, 384U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908(1966), the justices of this Court concludedthat the test was reasonable and we de-clared our belief that the Legislature cre-ated the consent requirement of § 31–27–2.1 ‘‘to prevent a violent confrontation be-tween an arresting officer and a suspectunwilling to submit to a test of this sort.’’Locke, 418 A.2d at 849. These policy con-siderations obtain today. In this case, thestate was unable to explain how medicalpersonnel at Kent County Hospital cameto agree to draw defendant’s blood withouther authorization and consent. Moreover,as will be discussed infra, there is nostatutory authorization for the issuance ofa search warrant for the seizure of bodilyfluids, and the state’s suggestion that


there can be a valid ‘‘judicially authorizedwarrant’’ is without merit.

Importantly, in the majority of statesthat admit evidence of a defendant’s BACwhen the blood or urine was drawn with-out compliance with implied consent proce-dures, there exists a statute that eitherrequires or permits the withdrawal ofblood in felony DUI cases. In State v.Robarge, 35 Conn.Supp. 511, 391 A.2d 184(1977), a case relied upon by the state inthe case at bar, the Superior Court ofConnecticut, Appellate Session, held thatthe State of Connecticut’s failure to estab-lish that the defendant-motorist consentedto the taking of a blood sample that wasseized at the direction of the state’s medi-cal examiner after the death of her passen-ger was irrelevant because consent appliedonly to prosecutions for DUI, not to thosefor vehicular homicide cases. However,Connecticut’s implied consent statute doesnot prohibit the seizure of blood after arefusal, and in fact, it authorizes a test of amotorist’s blood by or at the direction ofthe state’s medical examiner after a fatalaccident.10

In addition to Connecticut, severalstates have amended their respective im-plied consent statutes in response to judi-cial pronouncements that the prohibitionagainst a test in the face of a refusalapplies to felony, as well as misdemeanor,

offenses. Indeed, many of these jurisdic-tions faced issues similar to those facing ustoday. In State v. Bellino, 390 A.2d 1014,1020 (Me.1978), the Supreme JudicialCourt of Maine, citing the ‘‘great concernover the right of the State to take blood orbreath samples of the motoring public,’’interpreted Maine’s then-existing impliedconsent statute, and concluded that an ar-rest and the actual consent of the offend-ing motorist were conditions precedent tothe admissibility in both misdemeanor andfelony cases, and suppressed the results ofa blood test in a DUI, death resulting, casein which the blood was drawn by a nurseat the direction of a police officer. Maine’simplied consent statute has since beenamended, and carves out an exception forthose who drink, drive, and kill. Maine’spresent statute 11 not only requires thewithdrawal of blood from a DUI suspectinvolved in an accident resulting in death,it provides immunity for any medical tech-nician who performs the test.12 Likewise,Vermont’s current implied consent lawspecifically authorizes a law enforcementofficer, upon the refusal of a motorist tosubmit to a test, to secure a search war-rant to obtain a blood sample in any DUIcase resulting in serious bodily injury ordeath.13

Moreover, the history of the State ofNew Hampshire concerning the applicabil-ity of that state’s implied consent law to

10. General Statutes of Connecticut § 14–227c(West 1999), entitled ‘‘Blood and breath sam-ples following fatal accidents,’’ provides inpart that:

‘‘To the extent provided by law, a blood orbreath sample may also be obtained fromany surviving operator whose motor vehicleis involved in such [a fatal] accident. Thetest shall be performed by or at the di-rection of a police officer according tomethods and with equipment approved bythe Department of Public Safety and shallbe performed by a person certified or recer-tified for such purpose by said departmentor recertified by persons certified as in-structors by the Commissioner of PublicSafety. The equipment used for such testshall be checked for accuracy by a personcertified by the Department of Public Safetyimmediately before and after such test is

performed. If a blood test is performed, itshall be on a blood sample taken by aperson licensed to practice medicine andsurgery in this state, a qualified laboratorytechnician, an emergency medical techni-cian II, a registered nurse or a phlebotom-ist, as defined in subsection (m) of section14–227b. The blood samples obtained fromthe surviving operator shall be examinedfor the presence and concentration of alco-hol by the Division of Scientific Serviceswithin the Department of Public Safety.’’

11. Me.Rev.Stat.Ann. subchapter IV of tit. 29–A (West 1996).

12. Me.Rev.Stat.Ann. tit. 29–A, § 2528 (West1996).

13. Vt.Stat.Ann. tit. 23, § 1202(f) (1999).


DUI death cases also is instructive. InState v. Berry, 121 N.H. 324, 428 A.2d1250, 1251 (1981), the Supreme Court ofNew Hampshire held that the provision inthat state’s implied consent statute provid-ing that, ‘‘ ‘if a person under arrest refuses*** to submit to a chemical test *** noneshall be given,’ ’’ was applicable in DUIcases and in cases of negligent homicide,and found there to be nothing in ‘‘thelegislative history of the implied consentstatute, to indicate that the words ‘noneshall be given’ were intended by the legis-lature to mean other than that no chemicaltest shall be administered without the ac-cused’s consent.’’ The New Hampshirelegislature amended the statute with thespecific intent ‘‘to eliminate the prohibitionagainst the taking of a chemical test todetermine intoxication where a person isunder arrest for any offense other than aviolation or misdemeanor ***.’’ State v.Wong, 125 N.H. 610, 486 A.2d 262, 273(1984) (quoting N.H.Rev.Stat.Ann. § 563:3(1981)). New Hampshire now has a stat-ute requiring the testing for evidence ofalcohol or drug consumption for all per-sons involved in a collision that results indeath or serious bodily injury to any per-son, including all deceased vehicle occu-pants and any pedestrian involved in thecollision, but in the case of a living driver,the officer must have probable cause tobelieve that the driver caused the colli-sion.14

Additionally, the State of Maryland’s ex-perience is almost identical to the case atbar. Prior to 1982, Maryland’s impliedconsent statute required that certain pro-cedural steps be taken before a chemicaltest was administered. In Loscomb v.State, 45 Md.App. 598, 416 A.2d 1276(1980), the Court of Special Appeals de-clared the implied consent statute applica-ble to all DUI death offenses, including theprohibition against a compulsory test.

Thereafter, the Legislature amended Ma-ryland’s implied consent statute to requirea driver to submit to a chemical test in allaccident cases resulting in death or seriousinjury to another person. It also providedimmunity from liability to any medical per-sonnel who perform the test.15

Similarly, a survey of many other juris-dictions throughout the United States withstatutes that provide that ‘‘none shall begiven’’ when a driver refuses to consent toa test demonstrates that statutory authori-zation of some kind is necessary for thecompulsory withdrawal of blood upon arefusal. Included in this survey is theState of New Mexico, where that state’sCourt of Appeals found that, ‘‘[t]he act ofobtaining a search warrant to circumventthe statutory prohibition [against the giv-ing of a test upon a refusal] *** is unavail-ing,’’ and held that the implied consentstatute under consideration contained noexceptions for a search for a driver’s bloodalcohol content. State v. Steele, 93 N.M.470, 601 P.2d 440, 441 (Ct.App.1979). Thecourt invited the Legislature to write anexception into the law and refused ‘‘toencroach upon the legislative prerogativesby judicial fiat or, even, by applying consti-tutional exceptions to statutes specificallydenying such exceptions.’’ Id. The Legis-lature reacted. New Mexico’s present re-fusal statute contains a specific exceptionfor the issuance of a search warrant autho-rizing chemical tests upon a finding ofprobable cause that a person was drivingunder the influence and caused the deathor great bodily injury of another.16

Although this Court believes it unneces-sary to continue to canvass the remainingstates, we find the experience of the Stateof Tennessee particularly relevant. Thatstate’s implied consent statute prohibitsthe admission of test results taken after arefusal, but contains a specific exceptionfor the admissibility of evidence in criminal

14. N.H.Rev.Stat.Ann. tit. 21, § 265:93 (1993).

15. Md.Code Ann., Transportation § 16–205.1(c) (Michie 1999), ‘‘Circumstances under

which chemical tests required; administration;liability.’’

16. N.M.Stat.Ann. § 66–8–111 (Michie 1998).


prosecutions for aggravated assault orhomicide by the use of a motor vehicle forblood drawn by ‘‘any means lawful,’’ 17 in-cluding the warrantless seizure of bloodbased upon probable cause. Moreover,the states of Alaska,18 Arizona,19 Iowa,20

Florida,21 Indiana,22 Michigan,23 and Tex-as 24 all have statutes specifically authoriz-ing the forcible seizure of blood in DUIcases. Further, in three states, these stat-utes specifically were revised in responseto judicial decisions barring the forcibleseizure of blood. See Pena v. State, 684P.2d 864 (Alaska 1984); Collins v. Superi-or Court, 158 Ariz. 145, 761 P.2d 1049(1988); State v. Hitchens, 294 N.W.2d 686(Iowa 1980).

Accordingly, a majority of this Courtholds that under the existing statutoryframework, consent is a condition prece-dent to admissibility. Further, the ChiefJustice and I conclude that our holding inTimms furnishes direct authority for therequirement that a defendant give his orher consent in DUI, death resulting, casesbefore the results of blood tests may beadmitted. The Chief Justice and I are notpersuaded that we should revisit this hold-ing to sustain the admissibility of bloodevidence drawn pursuant to a search war-rant.

We are of the opinion that any changesto this mandate must emanate from the

General Assembly. Further, we answerquestion two in the affirmative, and holdthat in cases in which a motorist has re-fused consent, members of law enforce-ment are precluded from obtaining asearch warrant to seize blood for alcohol ordrug testing.

II

Question Three

Question three requires this Court todecide whether a determination that § 31–27–2.1 precludes law enforcement person-nel from obtaining a search warrant forthe seizure of blood amounts to an uncon-stitutional limitation of the judicial authori-ty to issue search warrants as provided inarticle 5 of the Rhode Island Constitutionand G.L.1956 § 12–5–1.

To properly answer this question, wemust construe still another portion of theGeneral Laws, namely §§ 12–5–1 and 12–5–2, which deal with the issuance of searchwarrants. Section 12–5–1 provides that asearch warrant may be issued by anyjudge of the District Court and that‘‘[n]othing contained in this chapter shallbe so construed as to restrain the power ofthe justices of the supreme or superiorcourts by virtue of § 8–3–6 to issue asearch warrant.’’ 25 However, the authori-

17. Tenn.Code Ann. § 55–10–406(e) (1998).

18. Alaska Stat. § 28.35.035 (1998), ‘‘Adminis-tration of chemical tests without consent.’’

19. Ariz.Rev.Stat.Ann. § 28–1321D.1. (West1998).

20. Iowa Code Ann. § 321J.10 (West 1997).

21. Fla.Stat.Ann. § 316.1933(1) (West 1990);see State v. Slaney, 653 So.2d 422 (Fla.Dist.Ct.App.1995).

22. Ind.Code § 9–30–6–6(g) (1999).

23. Mich.Comp.Laws Ann.§ 257.625a(6)(b)(iv) (West 2000 Supp.), ‘‘atest shall not be given without a court order,but the peace officer may seek to obtain[such] a court order.’’

24. Tex.Transp.Code Ann. § 724.012(b)(2)(West 1999) provides that a peace officer shallrequire the taking of a person’s breath orblood specimen if ‘‘the person was the opera-tor of a motor vehicle *** involved in anaccident that the officer reasonably believesoccurred as a result of the offense [of DUI].’’

25. General Laws 1956 § 8–3–6, entitled ‘‘Jus-tices as conservators of peace—Powers incriminal cases,’’ provides that ‘‘[t]he justicesof the supreme and superior court shall, byvirtue of their office, be severally conservatorsof the peace throughout the state, and shallseverally have the same power in criminalcases throughout the state that district courtshave in their respective districts.’’


ty for the issuance of a search warrant isfound in § 12–5–2, which provides:

‘‘Grounds for issuance.—A warrantmay be issued under this chapter tosearch for and seize any property:

(1) Stolen or embezzled, or obtainedby any false pretense, or pretenses, withintent to cheat or defraud within thisstate, or elsewhere;

(2) Kept, suffered to be kept, con-cealed, deposited, or possessed in viola-tion of law, or for the purpose of violat-ing the law;

(3) Designed or intended for use, orwhich is or has been used, in violation oflaw, or as a means of committing aviolation of law; or

(4) Which is evidence of the commis-sion of a crime.’’

The only portion of § 12–5–2 that isremotely relevant to this case is subsection(4), which authorizes the issuance of awarrant for the seizure of any ‘‘property’’that is ‘‘evidence of the commission of acrime.’’ A survey of the remainder of ourstatutes discloses no authorization to issuea search warrant for the withdrawal andseizure of blood or other bodily fluids.The seizure of a suspect’s blood involvesthe use of a needle and the location andpuncture of a vein to extract the fluid.Although not as physically intrusive as theforcible extraction of a prisoner’s stomachcontents in search of evidence of a crime,Rochin v. California, 342 U.S. 165, 172, 72S.Ct. 205, 209, 96 L.Ed. 183, 190 (1952), ablood draw is nonetheless an intrusion be-

yond the body’s surface that affects one’shuman dignity and privacy. Schmerber,384 U.S. at 769–70, 86 S.Ct. at 1835, 16L.Ed.2d at 919.26 Further, although thealcohol content of a motorist’s blood isrelevant to the degree of intoxication in aDUI trial, we are not satisfied that one’sbodily fluid is ‘‘property’’ or evidence ofthe commission of a crime. We note thatit is not the blood itself that is the ‘‘evi-dence of the commission of a crime,’’ butrather the test results that are relevant ina criminal trial. Thus, we are of the opin-ion that the General Assembly, by its en-actment of § 31–27–2.1, as well as thelimited power to issue search warrantsthat has been conferred upon the judiciaryby § 12–5–2, has not specifically autho-rized the issuance of a search warrant forsuch a purpose. Moreover, we are evermindful that the Rhode Island Constitutiondeals with search warrants only in thenegative sense. Article 1, section 6, of theRhode Island Constitution reads as fol-lows:

‘‘Search and seizure.—The right of thepeople to be secure in their persons,papers and possessions, against unrea-sonable searches and seizures, shall notbe violated; and no warrant shall issue,but on complaint in writing, upon proba-ble cause, supported by oath or affirma-tion, and describing as nearly as may be,the place to be searched and the personsor things to be seized.’’

[6, 7] This Court has long recognizedthat the Superior Court is statutory inorigin and derives its powers from statutes

26. Our dissenting colleagues have taken us totask because we have recognized that forcibleseizure of blood from a prisoner by untrainedlaw enforcement personnel gives rise to con-cerns about privacy, human dignity and thesafety of the officer as well as the prisoner.The dissent has accused us of demonstratingan ‘‘apparent compassionate concern’’ forthese ‘‘chemically-impaired drivers’’ who maybe forced to suffer the ‘‘profound and lastinghorror’’ of a nonconsensual blood draw. Werespectfully disagree. It is the duty of thisCourt to decide cases based upon constitu-tional, statutory, and decisional law, ratherthan coddle those who drink and drive. We

recognize that this task may be unpleasantand unpopular and may result in the exclu-sion of relevant evidence based upon per-ceived technicalities. However distasteful theresult, it is not the province of this Court toinvade the domain of the Legislature in orderto create a more palatable result at the ex-pense of individual liberty and privacy inter-ests. Further, although it has excoriated themajority for concluding that blood may not bedrawn without the prisoner’s consent, the dis-senting opinion contains no suggestion orguidance relative to how, by whom, and un-der what circumstances a prisoner’s bloodmay be forcibly seized.


duly enacted by the Legislature.27 Thispower cannot be extended by judicial in-terpretation, Boss v. Sprague, 53 R.I. 1,162 A. 710 (1932), nor by a policy adoptedby the Executive Branch of state govern-ment. The scope of the Superior Court’swarrant authority is delineated by theLegislature, in which all power not explic-itly granted to another branch of govern-ment resides. Kass v. Retirement Boardof the Employees’ Retirement System, 567A.2d 358, 361 (R.I.1989). The SuperiorCourt has no inherent power to issue asearch warrant, but instead exercises onlythose powers that are conferred by stat-ute. Indeed, the General Assembly hasnot hesitated to extend the scope of thejudicial power to issue search warrants byspecific legislative action covering a widerange of subjects, including G.L.1956§ 11–19–24, which authorizes search war-rants for gambling apparatus and para-phernalia; G.L.1956 § 11–34–4, authoriz-ing the issuance of a warrant to search ahouse of prostitution; G.L.1956 § 19–26–13, authorizing the issuance of a searchwarrant to search the premises of a pawn-broker for stolen property; G.L.1956§ 30–9–11, authorizing the adjutant gener-al of the national guard to obtain a war-rant for the search and seizure of arms,ammunition, uniforms, or other militaryequipment belonging to the military; G.L.1956 § 3–12–4, authorizing the issuance ofa search warrant for the search and sei-zure of any impure or adulterated liquors;G.L.1956 § 4–1–19, authorizing the issu-ance of a search warrant to search anyplace believed to be connected to the cruel-ty of animals; and finally, G.L.1956 §§ 12–5.1–4 and 12–5.2–2, authorizing the inter-ception of wire communications and theissuance of an order for the use of a pen

register or telephone trap. Moreover, theGeneral Assembly has authorized the sei-zure of a host of material by the state’s lawenforcement officers, including fightingbirds or animals, obscene material, hazard-ous waste, firearms, explosives, commer-cial fertilizer and seed, forgery and coun-terfeiting devices, property held out forsale by an itinerant vendor, shellfish takenin polluted waters, and driver’s licensesfound to be in the possession of any personother than the licensee. Thus far, theLegislature has not acted to authorize thesearch and seizure of a person’s bodilyfluids.

Finally, it should be noted that law en-forcement officers generally have been al-lowed by both federal and state decisionallaw to search a suspect incident to a law-ful arrest. Indeed, in Schmerber, the Su-preme Court of the United States, in anopinion by Justice Brennan, held that anofficer who had probable cause to believethat the defendant was operating an auto-mobile while under the influence of alco-hol could constitutionally require him tosubmit to the withdrawal of blood by aphysician in a hospital, even though thedefendant objected to the procedure.Schmerber, 384 U.S. at 771, 86 S.Ct. at1836, 16 L.Ed.2d at 920. The Court heldthat the warrant requirement was pre-cluded by the emergent necessity to con-duct the tests before the BAC was re-duced by the passage of time to the pointwhere it would constitute the destructionof evidence. Id. Therefore, the Courtconcluded ‘‘that the attempt to secure evi-dence of blood-alcohol content in this casewas an appropriate incident to petitioner’sarrest.’’ Id. From the point of view ofthe Fourth Amendment and the Four-

27. Article 10, section 2, of the Rhode IslandConstitution sets forth the powers of the judi-cial branch of state government and provides,in relevant part:

‘‘Jurisdiction of supreme and inferiorcourts—Quorum of supreme court.—Thesupreme court shall have final revisory andappellate jurisdiction upon all questions oflaw and equity. It shall have power to

issue prerogative writs, and shall also havesuch other jurisdiction as may, from time totime, be prescribed by law. A majority ofits judges shall always be necessary to con-stitute a quorum. The inferior courts shallhave such jurisdiction as may, from time totime, be prescribed by law.’’ (Emphasisadded.)


teenth Amendment, such an intrusioneven over the objection of the defendantwas not constitutionally forbidden. TheCourt did not discuss or consider whethera warrant would have been available un-der California law.

However, here we are confronted withthe question of whether an officer, in reli-ance upon a warrant that was not specifi-cally authorized by statute, may, underRhode Island law, obtain a blood sampleafter the suspect has refused to consent toa chemical test. Assuming that Schmerberstill represents the constitutional law ofthe United States, the warrant in this casewould have been surplusage under federalrequirements if, indeed, the officer hadprobable cause to believe that defendantwas operating under the influence of acontrolled substance.

However, the Chief Justice and I are ofthe opinion that the absence of a statuteauthorizing the issuance of a search war-rant to obtain a blood sample or a sampleof other bodily fluids places the questionof our overturning Timms in a totally dif-ferent light. Our Legislature has chosento construct an elaborate requirement ofconsent, buttressed with an equally elabo-rate set of admonitions around the proce-dure for obtaining a chemical test. Theserequirements, in addition to the absenceof a statute specifically authorizing the is-suance of a warrant to obtain such sam-ples, leads us to conclude that Timmsstruck the appropriate balance with re-spect to Rhode Island law. Accordingly,we are convinced that to overrule Timms,as well as St. Jean, we would impermissi-bly involve ourselves in the enterprise oflegislation. We would first be required tolegislate the issuance of a warrant for apurpose not authorized by statute. In ad-dition, we would be required to hold thatthis judicially authorized warrant wouldtrump the various provisions set forth bythe General Assembly requiring the con-sent of any suspect who may be subjectedto a chemical test for breath, blood, orurine. Moreover, if such a test may be

authorized by an officer without a war-rant, is that officer also empowered toforce a physician, nurse, or medical assis-tant to withdraw the sample against theirwill, in light of the fact that medical per-sonnel are restricted by the statutes relat-ing to a patient’s confidential health careinformation from disclosing informationwithout a person’s consent. See § 5–37.3–4. Medical personnel who ignore this re-quirement and draw blood from an uncon-senting subject at the direction of a policeofficer may face a civil action and, pursu-ant to § 5–37.3–4, possible fine and im-prisonment.

Accordingly, we decline to accept thestate’s invitation to venture into the realmof piecemeal legislation. We are mindfulthat this Court previously has held thatthe consent requirement was designed toavoid confrontation between a suspect andan officer who might wish to require himor her to submit to a chemical test. Statev. Locke, 418 A.2d 843 (R.I.1980). Conse-quently, even though the Federal Consti-tution may not require a warrant to au-thorize an officer to compel a suspect tosubmit to a blood test as long as theofficer has probable cause to believe thatthe suspect was driving while impaired, abyproduct of leaving enforcement of thisdecision to an officer unaided by a war-rant would be to create many dangerousand unintended consequences that shouldbe dealt with and prevented by legislativeenactment, not by judicial fiat. InSchmerber, the United States SupremeCourt merely decided the lengths a statemight go without violating the FederalConstitution. Therefore, the wisdom andframework for requiring tests and imple-menting testing procedures should proper-ly be left to the Legislature, which as setforth in Timms has indicated its choice.

[8] Accordingly, we conclude that§ 31–27–2.1 precludes law enforcement of-ficials from obtaining a warrant to seizeblood, and further, that this prohibition inno way unconstitutionally limits the au-thority of the judiciary to issue warrants.


The authority to issue warrants emanatesfrom the General Assembly, and the Gen-eral Assembly has not seen fit to vest theSuperior Court with that power.

CONCLUSION

For the reasons stated herein, we an-swer the certified questions as follows:

1. The Chief Justice and I would an-swer question one in the affirmative.

2. We answer question two in the affir-mative and hold that § 31–27–2.1does preclude members of law en-forcement from obtaining a judiciallyauthorized search warrant to seizeblood from a defendant who has re-fused to consent to such test.

3. We answer question three in thenegative, because the judicial powerto issue warrants is derived from theGeneral Assembly, and the GeneralAssembly has not vested the DistrictCourt or Superior Court with thepower to issue a search warrant forthe seizure of blood.

Justice FLANDERS concurs in ouranswer in question two and question threewhich set forth the judgment of the Court.

WEISBERGER, Chief Justice,concurring.

I concur completely in the opinion writ-ten by Justice Goldberg, not only in re-spect to her conclusions, but also in re-spect to the rationale of that opinion.

I write separately only to indicate thatour dissenting justices have expendedmore than twenty pages of enunciation ofpolicy that could have been implementedby less than a paragraph of legislation hadthe General Assembly been inclined so toprovide.

I do not disagree that sound policywould support legislation that would en-able a police officer to obtain a warrant forthe production of a blood sample in theevent that he or she had probable cause tobelieve that a suspect committed a felony

by taking the life or seriously injuring ahuman being while under the influence ofalcohol or a controlled substance. The sadfact is that G.L.1956 § 12–5–2 simply doesnot authorize the issuance of such a war-rant.

The dissenters eloquently argue thatcommon sense should dictate that the con-sent of one who has committed the crimeof driving under the influence of drugs ora controlled substance resulting in deathshould not be required as a condition pre-cedent to obtaining a blood sample by aphysician or qualified medical technicianfor the purpose of testing the content ofthat blood. I would agree that commonsense would support such an outcome.However, the incontrovertible truth is thatour felony statutes, G.L.1956 §§ 31–27–1and 31–27–2.2, do not contain such a state-ment. Further, the provisions of G.L.1956§ 5–37.3–4 specifically prohibit the releaseof such medical health care information inthe absence of written consent of the pa-tient or his or her authorize representa-tive. A close reading of the exceptionsprovided under § 5–37.3–4(b) discloses noprovisions for release of the results of ablood test obtained pursuant to a judicialwarrant.

I sincerely wish that our statutory provi-sions in chapter 27 of title 31 and in chap-ter 37.3 of title 5 would authorize theobtaining of a blood sample or other chem-ical tests of breath and body fluids whenprobable cause exists to believe that asuspect has committed vehicular homicide.The plain fact is that our statutes make nosuch provision. All of the oratory in thedissent cannot amend these statutes toachieve the desired purpose. Only theGeneral Assembly has this power.

I believe that the statements of policyand reason set forth in the dissent haveconsiderable merit. However, these state-ments should be addressed to the Legisla-ture and not to this Court. An examina-tion of the relevant statutes indicates thatthere is a significant tension evidenced byour statutory structure between the objec-


tive of protecting the confidentiality of per-sons accused of a crime (particularly mat-ters relating to the disclosure of healthcare information or requiring such personto submit to chemical tests of breath andbodily fluids), and the desire to prosecutefor serious criminal offenses. The resultis, as we stated fourteen years ago in Statev. Timms, 505 A.2d 1132, 1135–36 (R.I.1986), that no person accused of driving soas to endanger resulting in death, whereinthe alcoholic content of the person’s bloodwould be a relevant factor in determininghis or her ability to drive safely could besubjected to a blood test without that per-son’s consent. I agree that the feeble civilremedy provided for refusing the chemicaltest is an insufficient disincentive for suchrefusal when one is accused of vehicularhomicide. See § 31–27–2.1. I would urgethe General Assembly to amend the law sothat it might read as the dissenters wouldhave it read.

However, I do not believe that the mem-bers of this Court have the power to tor-ture the language of these various relevantstatutes in order to bring about the de-sired result. I would, therefore, respect-fully ask the members of the General As-sembly to review these statutes in the lightof State v. DiCicco, 707 A.2d 251 (R.I.1998); State v. Timms, supra; and Statev. St. Jean, 554 A.2d 206 (R.I.1989), as wellas the various opinions in this case, andenact into law the suggestions contained inthe dissenting opinion. I would certainlyapplaud such action, but do not have thepower by decisional legerdemain to amendthe existing statutes so as to achieve thedissenters’ objective.

FLANDERS, J., concurring in part anddissenting in part.

I concur with that portion of JusticeGoldberg’s opinion that concludes thatG.L.1956 § 31–27–2.1 bars police officersfrom obtaining a search warrant thatwould force a person suspected of drivingunder the influence, death resulting, tosubmit to a blood test for the presence of

alcohol after that person has refused toconsent to such testing upon the request ofa law enforcement officer to do so. Sec-tion 31–27–2.1(a) provides, in pertinentpart, that in these circumstances no bloodtest shall be given to a suspect unless heor she consents thereto (‘‘none shall begiven’’). I do not believe that this restric-tion on police-initiated blood testing of mo-torists, in the absence of consent, pertainssolely to situations involving mere misde-meanor charges of driving under the influ-ence. Rather, I conclude that the Legisla-ture meant what it said and did not intendto permit the police to circumvent the vari-ous procedural and other safeguards forsuch testing that are set forth in § 31–27–2 by allowing the police to obtain a searchwarrant authorizing such testing despitethe suspect’s refusal to consent to the offi-cer’s request that he or she voluntarilysubmit to such testing. Moreover, for thereasons indicated in Justice Goldberg’sopinion, I do not believe that this legisla-tive limitation on the ability of the police toobtain search warrants violates any appli-cable separation-of-powers principles.

I also agree, however, with JusticeBourcier’s analysis of the scope of § 31–27–2(a). But for the Legislature’s enact-ment of § 31–27–2.1 and this Court’s deci-sion in State v. Timms, 505 A.2d 1132(R.I.1986) and its progeny, I would beinclined to agree that the consent and test-ing provisions of § 31–27–2 are, by theirterms, applicable only in misdemeanorprosecutions for driving under the influ-ence, and have no application whatsoeverto felony prosecutions for driving underthe influence, death resulting. But, in myjudgment, this issue becomes a moot pointbecause I also agree that § 31–27–2.1(a)’s‘‘none shall be given’’ language is not solimited, on its face, to license-revocationproceedings or to misdemeanor prosecu-tions. Rather, according to State v. Berk-er, 120 R.I. 849, 391 A.2d 107 (1978), it is§ 31–27–2.1(a)’s implied-consent provisionsthat are limited to license-revocation pro-ceedings; but the statute’s mandate of no


blood testing without consent (‘‘none shallbe given’’) applies whenever a motorist hasrefused to submit to the § 31–27–2 tests—regardless of whether the police ultimatelyprefer any charges or initiate any proceed-ings against the motorist who has refusedto submit to the requested testing. Thus,§ 31–27–2.1(a) indicates that no blood test-ing shall occur if consent is not obtainedfrom ‘‘[a]ny person who operates a motorvehicle within this state [who] *** havingbeen placed under arrest refuses upon therequest of a law enforcement officer tosubmit to the tests, as provided in § 31–27–2.’’ In that case, ‘‘none shall be giv-en’’—irrespective of whatever particularmisdemeanor or felony charge(s) may ormay not eventuate in any given case.28

Because § 31–27–2.1 is more specific thanG.L.1956 §§ 12–5–1 and 12–5–2 (the gen-eral statutes authorizing the issuance ofsearch warrants), I construe § 31–27–2.1(a)’s ‘‘none shall be given’’ directive asconstituting an exception to the more gen-eral search-warrant statutes—assuming,without deciding, that a warrant authoriz-ing the seizure of a person’s blood to testfor the alcohol content therein would evenfall within the scope of that statute, givenits apparent property-seizure limitations.Although this issue is not before us andhas not been properly presented for ourdecision, it is one that, as JusticeGoldberg’s opinion elucidates, raises verydifficult and troubling questions about thepropriety of issuing search warrants at allto seize a person’s blood.

Moreover, there is a further reason whythe use of a search warrant to compel asuspect to submit to a blood test againsthis or her will may be problematic underour state Constitution. Under the FifthAmendment to the United States Constitu-

tion, ‘‘[n]o person *** shall be compelled inany criminal case to be a witness againsthimself ***.’’ The comparable provision inour state Constitution, however, containsdifferent and potentially more expansivewording: article 1, section 13, of theRhode Island Constitution entitled ‘‘Self-crimination,’’ provides that ‘‘No person in acourt of common law shall be compelled togive self-criminating evidence.’’ Thus,while the Fifth Amendment is limited to aprohibition against compelling persons inany criminal case to be a witness againstthemselves, the bar against compulsoryself-incrimination in Rhode Island’s Decla-ration of Rights arguably provides broaderprotection by precluding the governmentnot just from compelling people to be wit-nesses against themselves but also fromcompelling them ‘‘to give self-criminatingevidence.’’ R.I. Const. art. 1, sec. 13. Cf.Commonwealth v. Mavredakis, 430 Mass.848, 725 N.E.2d 169, 178 (2000) (comparingthe textual differences between Massachu-setts Declaration of Rights, art. 12, whichstates ‘‘No subject shall *** be compelledto accuse, or furnish evidence against him-self,’’ and the Fifth Amendment, and not-ing that ‘‘[t]he text of art. 12, as it relatesto self-incrimination, is broader than theFifth Amendment,’’ citing Opinion of theJustices, 412 Mass. 1201, 591 N.E.2d 1073(1992), in which the Supreme JudicialCourt advised the Massachusetts Senatethat admitting evidence of a defendant’srefusal to consent to a breathalyzer test ata criminal trial would violate art. 12, incontradiction to the United States Su-preme Court’s decision in South Dakota v.Neville, 459 U.S. 553, 564, 103 S.Ct. 916,923, 74 L.Ed.2d 748, 759 (1983)).

Although previous Rhode Island judicialdecisions have refused to differentiate be-

28. But note that G.L.1956 § 31–27–2.1(a)’s‘‘none shall be given’’ mandate is only trig-gered if three factual preconditions are satis-fied: (1) the motorist is placed under arrest;(2) the law enforcement officer requests themotorist to submit to any of the § 31–27–2tests; and (3) the motorist refuses to do so.In this case, all of these factual circumstancesare present. Thus, we have no occasion to

opine on whether, for example, a nonconsen-sual seizure of blood incident to a lawfularrest would be valid under Rhode Island lawif the law enforcement officer did not firstrequest the motorist to consent to the § 31–27–2 tests but simply arranged for a sample ofthe motorist’s blood to be drawn for testingpurposes with or without the motorist’s coop-eration.


tween the standard to be applied underarticle 1, section 13, and the one that ap-plies under the Fifth Amendment to theFederal Constitution, see, e.g., State v.Bertram, 591 A.2d 14, 21–22 (R.I.1991)(refusing to deviate from the Fifth Amend-ment test when analyzing the validity ofcompelled handwriting exemplars underarticle 1, section 13, of the Rhode IslandConstitution), no Rhode Island SupremeCourt decision yet has examined the po-tentially critical difference in the wordingof these two constitutional provisions andits arguable significance in cases in whichthe government requires a suspect ‘‘to giveself-criminating evidence’’ that is not initself of a communicative or a testimonialnature. R.I. Const. art. 1, sec. 13.

In other words, unlike the Federal Con-stitution, the Rhode Island Constitutiondoes not seem to incorporate, by its terms,an express testimonial or a communicativelimitation on the compelled giving of evi-dence by a person. Thus, the possibilityexists that the framers drafted article 1,section 13, in such a manner as to providefor a broader ban on the government’scompelling of self-incriminatory acts thanthe Fifth Amendment analogue to theUnited States Constitution (at least as thatclause has been construed most recentlyby a majority of the United States Su-preme Court). For example, such acts asforcing suspects and witnesses to givetheir blood, handwriting exemplars, DNAsamples, fingerprints, or documents, orotherwise to assist the prosecution ‘‘in acourt of common law’’ by the compulsorygiving of evidence of a ‘‘self-criminating’’nature may fall within the literal terms ofarticle 1, section 13, regardless of whetherthe compelled giving of such evidence is‘‘testimonial’’ in nature. See, e.g., Doe v.United States, 487 U.S. 201, 108 S.Ct.2341, 101 L.Ed.2d 184 (1988).

Moreover, in a recent concurring opinionauthored by Justice Thomas (joined byJustice Scalia), in the United States Su-preme Court case of United States v. Hub-bell, 530 U.S. 27, ––––, 120 S.Ct. 2037,

2050–54, 147 L.Ed.2d 24, 43–48 (2000),Justice Thomas noted that, historically,‘‘substantial support [exists] for the viewthat the term ‘witness’ [in the FifthAmendment] meant a person who gives orfurnishes evidence, a broader meaningthan that which our case law currentlyascribes to the term.’’ Id. at ––––, 120S.Ct. at 2050, 147 L.Ed.2d at 44. JusticeThomas specifically observed that duringthe debate over the ratification of the Fed-eral Constitution Rhode Island was one offour states that proposed a bill of rightsthat would grant citizens a right againstany governmental compulsion ‘‘to give evi-dence’’—regardless of whether, in doingso, the person would ‘‘be a witness’’against himself or herself. Id. at ––––, 120S.Ct. at 2052, 147 L.Ed.2d at 46 (citing theRhode Island Proposal of May 29, 1790).Compare Boyd v. United States, 116 U.S.616, 634–35, 6 S.Ct. 524, 534–35, 29 L.Ed.746, 752 (1886) (holding that the FifthAmendment protected a suspect againstthe compelled production of books and pa-pers), with Fisher v. United States, 425U.S. 391, 408, 96 S.Ct. 1569, 1579, 48L.Ed.2d 39, 54 (1976) (permitting the gov-ernment to force a person to furnish in-criminating documentary evidence andprotecting only the ‘‘testimonial’’ aspects ofthat transfer); but see Hubbell, 530 U.S. at––––, 120 S.Ct. at 2048, 147 L.Ed.2d at 41–42 (barring government from indicting animmunized witness based upon the docu-ments produced by the witness in responseto a subpoena duces tecum ).

In any event, in a case properly preserv-ing this issue, I would remain open to theargument that the Rhode Island Constitu-tion (article 1, section 13) should be con-strued more broadly than the FederalConstitution in this respect because of theRhode Island framers’ failure to adopt theFederal Constitution’s ‘‘witness againsthimself’’ language. U.S. Const.Amend. V.Arguably, the broader terminology of theRhode Island Constitution—precluding aperson from being compelled ‘‘to give self-criminating evidence’’—means that no


‘‘testimonial’’ or ‘‘communicative’’ limita-tion exists whenever the government at-tempts to compel a person to provide itwith ‘‘self-criminating evidence,’’ for use‘‘in a court of common law.’’ R.I. Const.art. 1, sec. 13. Under this interpretation,the government could be barred from com-pelling suspects to give handwriting exem-plars, blood, fingerprints, DNA samples,or other such ‘‘self-criminating’’ evidence ifthey objected to doing so. But becausethis issue is not now before us, I wouldleave this question for this Court to ad-dress in another case that raises it. Suf-fice it to say for now that, in cases like thisone, construing § 31–27–2.1 to precludenonconsensual seizures of a person’s bloodfor drug-testing purposes avoids the neces-sity for us to decide the difficult constitu-tional issues described above—as well asthe other legal and pragmatic problemsalluded to in Justice Goldberg’s opinion—ifthe police were entitled to compel a personto give them a blood sample after theperson has refused a police officer’s re-quest to submit to such testing voluntarilyand after the police have sought and ob-tained a search warrant for that purpose.

For these reasons, I would answer ques-tion one in the negative, question two inthe affirmative, and question three in thenegative.

BOURCIER, Justice, with whom JusticeLEDERBERG joins, dissenting.

I would respond in the negative to ques-tions one and two and need not answer thethird question that has been certified to usfrom the Superior Court for the reasonshereinafter set out.

I

Certified Question 1

‘‘In view of State v. Timms, 505 A.2d1132 (R.I.1986), should R.I.Gen.Laws§ 31–27–2(c) be interpreted to preclude,in a case involving an alleged violation ofR.I.Gen.Laws § 31–27–2.2 (driving un-der the influence, death resulting), the

admission at trial of the results ofbreathalyzer, blood or urine tests at tri-al, when the breath, blood or urine sam-ples were seized without the defendant’sconsent and pursuant to a judicially au-thorized search warrant?’’

In a felony prosecution for driving underthe influence of liquor or drugs, deathresulting, pursuant to G.L.1956 § 31–27–2.2, I would not bar the admission of testresults derived from the chemical analysisof a defendant’s breath, blood or urinewhen such samples were seized without adefendant’s consent but had been takenpursuant to a judicially authorized searchwarrant. I would not bar admission ofthat evidence based on the questionabledicta found in State v. Timms, 505 A.2d1132 (R.I.1986), dicta that was later uncer-emoniously canonized in State v. St. Jean,554 A.2d 206, 211 (R.I.1989), without anymention whatsoever of Timms, and with-out the benefit of any meaningful judicialanalysis. I read the plain language of§ 31–27–2(c) as only barring the admissionof nonconsensual chemical test results inmisdemeanor prosecutions under subsec-tion (a) in that particular statute.

First, the Timms case. That case, sim-ply put, created bad law out of mere dicta.Timms, it should be noted, had beencharged only with two counts of driving soas to endanger, death resulting, in viola-tion of § 31–27–1. Id. at 1133. Nothingin that particular statutory offense re-quired any proof that Timms had operatedher vehicle while under-the-influence ofany intoxicating liquor or drugs. Section31–27–1 requires proof only that an opera-tor has operated his or her vehicle inreckless disregard of the safety of others.See State v. Bettencourt, 723 A.2d 1101,1106 (R.I.1999). Following her SuperiorCourt jury trial and conviction, Timmschallenged that conviction in her appeal tothis Court.

In her appeal, she questioned only asingle evidentiary trial ruling made by thetrial justice. That evidentiary challengeconcerned only whether the two police de-


partment consent forms that she earlierhad signed, consenting to the taking of asample of her blood for chemical analysis,sufficiently complied with the particularconsent form prescribed in G.L.1956, § 5–37.3–4 of the Confidentiality of HealthCare Information Act. Timms, 505 A.2d at1135. Thus, her sole challenge to her con-viction concerned only the admissibility ofher medical record in light of the require-ments of the Confidentiality of HealthCare Information Act. Therefore, nothingin Timms’s appeal called for the Court inthat case to undertake its hypotheticalanalysis concerning the issue of consent asit applied to the taking and subsequenttesting of her blood. There was neitherlogical reason nor relevant purpose for thisCourt in that appeal to have indulged inspeculation about whether, if Timms hadbeen prosecuted for violation of either§ 31–27–2 or § 31–27–2.2 instead of § 31–27–1, that her prior consent to the takingof a sample of her blood in either of thoseparticular prosecutions would have beenrequired. It is important to note that adefendant’s required prior consent to thechemical analysis of a sample of his or herblood, breath or urine is provided for onlyin § 31–27–2. That statute, by its verywording, applies only to misdemeanorprosecutions for violation of § 31–27–2(a)and was never intended by the Legislatureto be impliedly applicable also in felonyprosecutions pursuant to § 31–27–1 (driv-ing so as to endanger), or § 31–27–2.2(driving under the influence, death result-ing). Thus, consideration of those statuteswas not relevant to the single appellateissue that had been raised by Timms inher appeal and was not in any way neces-sary to the determination of that issue inher appeal.

As I read Timms, it becomes obviousthat its dicta misadventure was promptedby the Court’s obvious failure to compre-hend why the Legislature specifically pro-vided for a suspected driver’s prior con-sent to the chemical testing of his or herbreath, blood or urine only in a misde-meanor § 31–27–2 prosecution, and did not

provide for that same prior consent andtesting in a felony § 31–27–1 prosecutionfor reckless driving, serious injury result-ing, or in a § 31–27–2.2 driving under theinfluence, death resulting prosecution.That perplexity is evident from the follow-ing excerpt from Timms:

‘‘Both statutes concern the same subjectmatter, namely driving in a manner soas to threaten public safety. Further-more, in addition to the already-enacted§§ 31–27–1 and 31–27–2, the Legislaturesubsequently created § 31–27–2.2, ‘Driv-ing under the influence of liquor ordrugs, resulting in death.’ The consentsafeguards in § 31–27–2.2 are also notexplicitly in its text, yet the Legislaturewould not have enacted two separatedriving-under-the-influence sections, in-tending that the consent safeguards ap-ply only to one.’’ Timms, 505 A.2d at1136.

That comment, I believe, exposes theTimms Court’s failure to appreciate thatthe chemical testing of a suspected opera-tor’s breath, blood or urine was ‘‘designeddeliberately to facilitate [a defendant’s]conviction, [and] not to shield him’’ fromprosecution and conviction. White v. Ma-ryland, 89 Md.App. 590, 598 A.2d 1208,1211 (1991) (quoting Brice v. State, 71Md.App. 563, 526 A.2d 647, 649 (1987)).Indeed, the Timms Court actually and re-peatedly refers to the ‘‘consent safe-guards’’ as being intended to protect thesuspected drunk driver. Such referencesreflect, I believe, that the Timms Courtmisapprehended for whom the allegedstatutory ‘‘consent safeguards’’ were in-tended, a misapprehension that today onlytwo justices of this Court continue to es-pouse.

I believe that this Court should no long-er regard Timms as valid judicial prece-dent, and that Timms should be reversed.Justices Lederberg and Flanders join withme in that regard, and thus, on this mat-ter, as we constitute a majority of thisCourt, State v. Timms is reversed. The


reversal of Timms does not, however, sig-nal the end of this Court’s response to thefirst certified question posed to us. Thereremains for consideration, the ancillary in-quiry posed to us in that question concern-ing whether, in a driving under the influ-ence, death resulting prosecution, pursuantto G.L. § 31–27–2.2, the test results of adefendant’s breath, blood, or urine sampletaken without a defendant’s prior consent,but taken pursuant to a judicially autho-rized search warrant, later are admissibleas evidence in that defendant’s trial.

[9] With regard to this Court’s re-sponse to that portion of the inquiryposed to us in Certified Question One,Justice Lederberg and I would respondthat chemical test results, derived from asample of a non-consenting suspected op-erator’s breath, blood or urine, taken pur-suant to a judicially authorized searchwarrant, would be admissible as evidencein a felony prosecution for driving underthe influence, death resulting, pursuant to§ 31–27–2.2. In that regard, JusticeGoldberg and the Chief Justice concludethat, in view of Timms, § 31–27–2(c) doesnot permit, in a case alleging a violationof § 37–27–2.2 (driving under the influ-ence, death resulting) the admission at tri-al of the results of breathalyzer, blood orurine tests, when the breath, blood, orurine samples were seized without the de-fendant’s consent pursuant to a judiciallyauthorized search warrant. Justice Flan-ders concludes that § 31–27–2(c) appliesonly to misdemeanor prosecutions; there-fore, he concurs with Justice Lederbergand myself that Timms does not bar theadmission at trial of the results of breath-alyzer, blood, or urine tests that wereseized without the defendant’s consent viaa search warrant. However, he believesthat § 31–27–2.1 does bar any such test-ing or seizure of the defendant’s blood,breath or urine without a defendant’s pri-or consent.

I believe, as was said in State v. Bruskie,536 A.2d 522, 524 (R.I.1988), that the ‘‘goalof legislation against drunken driving ***is to reduce the carnage occurring on ourhighways attributable to persons who im-bibe alcohol and then drive[,]’’ and theobjective of those statutes is ‘‘to removefrom the highway drivers who by drinkingbecome a menace to themselves and to thepublic.’’

This Court has often proclaimed thatwhen interpreting legislative enactments,it does so with a view towards carrying outthe intent and purpose of the particularlegislation, and in doing so, gives the legis-lation ‘‘what appears to be the meaningthat is most consistent with its *** obviouspurpose.’’ Kirby v. Planning Board ofReview of Middletown, 634 A.2d 285, 290(R.I.1993) (quoting Zannelli v. Di Sandro,84 R.I. 76, 81, 121 A.2d 652, 655 (1956)).See also State ex rel. Town of Middletownv. Anthony, 713 A.2d 207, 210 (R.I.1998).

I believe that the majority’s responsetoday, barring the chemical test results ofa sample of a non-consenting suspectedalcohol- or drug–impaired drivers’ breath,blood or urine in § 31–27–1 and § 31–27–2.2 felony prosecutions, serves to ignoreand frustrate the Legislature’s clearly ex-pressed intent and mandate found in § 31–27–2. That statute, § 31–27–2, only re-quires a suspected operator’s prior consentto chemical testing in misdemeanor no in-jury-fender-bender prosecutions, and notin felony prosecutions, pursuant to § 31–27–1 and § 31–27–2.2. Nothing can beclearer than the specific wording employedby the Legislature when enacting § 31–27–2(b)(1). That section says loud andclear that its prior consent to chemicaltesting requirement applies only to ‘‘[a]nyperson charged under subsection (a)’’ of§ 31–27–2, and subsection (a) specificallyconcerns only misdemeanor prosecutions.29

It states:

29. In July, 2000, the Legislature amended§ 31–27–2. Subsection (b)(1) now reads:

‘‘Any person charged under subsection(a) of this section whose blood alcohol con-centration is eight one-hundredths of one


‘‘31–27–2. Driving under influence ofliquor or drugs.—(a) Whoever operatesor otherwise drives any vehicle in thestate while under the influence of anyintoxicating liquor, drugs, toluene, orany controlled substance as defined inchapter 28 of title 21, or any combina-tion thereof, shall be guilty of a misde-meanor and shall be punished as provid-ed in subsection (d) of this section.

(b)(1) Any person charged under sub-section (a) of this section whose bloodalcohol concentration is one-tenth of onepercent (.1%) or more by weight asshown by a chemical analysis of a blood,breath, or urine sample shall be guilty ofviolating subsection (a) of this section.*** (emphasis added)(2) ***

(c) In any criminal prosecution for aviolation of subsection (a) of this sec-tion, evidence as to the amount of intoxi-cating liquor, toluene, or any controlledsubstance as defined in chapter 28 oftitle 21, or any combination thereof in

the defendant’s blood at the time allegedas shown by a chemical analysis of thedefendant’s breath, blood, or urine orother bodily substance shall be admissi-ble and competent, provided that evi-dence is presented that the followingconditions have been complied with:

(1) The defendant has consented to thetaking of the test upon which the analy-sis is made. Evidence that the defen-dant had refused to submit to the testshall not be admissible unless the defen-dant elects to testify.’’ (Emphasis add-ed.) 30

I am unable to join with the majority ofthis Court who opine that chemical testresult evidence of a defendant driver’sbreath, blood or urine, taken following anincident in which that defendant’s vehiclehas killed or permanently crippled someinnocent person on our public highways,should be inadmissible and barred as evi-dence of impairment in the trial of thedeath-causing driver. The majority’s

percent (.08%) or more by weight as shownby a chemical analysis of a blood, breath, orurine sample shall be guilty of violatingsubsection (a) of this section.’’ P.L.2000,ch. 264.

30. In State v. Robarge, 35 Conn.Supp. 511,391 A.2d 184, 185 (App.Ct.1977), the Con-necticut Appellate Court was confronted withthe same prior consent issue under statutesalmost identical to ours. The court there,correctly in my opinion, concluded that thefailure to meet the statutory conditions forconsent necessary for the admissibility of testsamples in prosecutions under ConnecticutGeneral Statutes Sec. 14–227a(b) (operationof a motor vehicle while under the influenceof intoxicating liquor or drugs) did not baradmission of blood sample test results in aprosecution under Sec. 53a–58a (negligenthomicide with a motor vehicle). The courtreasoned that to conclude otherwise would bewholly unsound in view of the clear languagein Sec. 14–227a(b), applying the consent re-quirement only to violations of Sec. 14–227a(a), the general driving-under-the-influ-ence statute. Id. The court there said:

‘‘The claim of the defendant that the fail-ure to meet the requirements of § 14–227a(b) rendered the blood test results in-admissible is wholly unsound in view of the

introductory clause, which reads ‘[i]n anycriminal prosecution for a violation of sub-section (a) of this section ***.’ It is as clearas words can make it that the requirementsof subsection (b) pertain only to prosecu-tions for the operation of a motor vehiclewhile under the influence of intoxicatingliquor or drugs in violation of § 14–227a(a).The defendant’s elaborate argument thatthe law should be otherwise should moreappropriately be addressed to the legisla-ture.’’ Robarge, 391 A.2d at 185.Later that year, the Connecticut Supreme

Court rejected the argument of a defendantcharged with misconduct with a motor vehi-cle where he asserted that his blood sampleshould have been excluded because the takingand testing of the sample did not meet theconsent requirements outlined in § 14–227a(b). State v. Singleton, 174 Conn. 112,384 A.2d 334, 336 (1977), cert. denied, 440U.S. 947, 99 S.Ct. 1425, 59 L.Ed.2d 635(1979). That court squarely held that ‘‘[b]y itsexpress terms, the procedural [consent] re-quirements of [§ 14–227a(b) ] apply to anycriminal prosecution for a violation of § 14–227a(a)—the offense of operating a motor ve-hicle while under the influence of intoxicatingliquor or drugs or both’’ and not to othervehicular violations such as the one withwhich defendant was charged. Id.


‘‘bar-all-prohibit-all’’ position serves butone senseless purpose, namely, to shackleour state prosecutors in their attempt toprosecute and convict defendants chargedwith felony violations of § 31–27–1 and§ 31–27–2.2. It also serves, sub silencio,actually to revive and reinstate the Timmsdicta rule, that for the past fourteen yearsonly has coddled and insulated alcohol- anddrug-impaired drivers from felony prose-cution and conviction. Pursuant to whatthe majority does in this proceeding, thosealcohol- or drug-impaired drivers who killand maim innocent people can continue toescape felony prosecution simply by refus-ing to consent to an officer’s request totake a breath, blood or urine sample. Inthat event, the suspected felon then will becharged with failing to consent to give abreath, blood or urine sample for testing, amisdemeanor, the penalty for which will bea short license suspension and a small fine.That is a far cry from what the Legisla-ture intended when it enacted stiff 10–yearjail sentences for drivers convicted for vio-lations of § 31–27–1 and for no less than 5and up to 15 years for convictions under§ 31–27–2.2.31

In his concurring opinion, the Chief Jus-tice candidly acknowledges ‘‘that commonsense should dictate that the consent ofone who has committed the crime of driv-ing under the influence of drugs or a con-trolled substance resulting in death shouldnot be required as a condition precedent toobtaining a blood sample by a physician orqualified medical technician for the pur-pose of testing.’’ However, he then re-treats from that position by adding thatthe ‘‘incontrovertible truth is that our felo-ny statutes, § 31–27–1 and § 31–27–2.2, donot contain such a statement.’’ Indeedthat is true, but is nothing more than aself-created truism. The undeniable truth

is that within those very same statutes asenacted by the General Assembly there isabsolutely no language providing for anycondition precedent to obtaining a suspect-ed blood sample and absolutely no lan-guage requiring a suspected driver’s priorconsent for the taking of a sample of his orher blood, breath or urine for chemicaltesting purposes. Instead, and in fact, itwas this Court, acting on its own initiativein Timms, that chose to judicially writeinto those statutes the very consent re-quirements that now plague us. Thus, allthat really is needed now to correct thatproblem is for this Court to carry out theeffect of our reversal today of Timms, andto do away with the judicially-created priorconsent requirements that this Court cre-ated in that case. No legislation actuallyis necessary. This Court can simply takeout what it put in, and without any furtherquibbling, the law would then be exactlywhat the Chief Justice concedes that itshould be. In short, this Court, havingcreated the suspected driver’s prior con-sent edict, now can—and should—rescindwhat it created.

Justice Goldberg’s opinion, in which theChief Justice joins, appears to ignore thetroubling implications that will flow fromthe opinion in response to Certified Ques-tion One, and seeks to justify their priorconsent viewpoint in all cases with the aidof the Latin phrase ‘‘noscitur a sociis,’’ 32

as well as by citing to what little remainsof Rochin v. California, 342 U.S. 165, 72S.Ct. 205, 96 L.Ed. 183 (1952). They em-bellish their Rochin cite with misplacedcompassionate concern for those alcohol-or drug-impaired drivers who kill innocentpeople on our highways and who cause thecarnage that our Legislature so deplores.They stress in their concern that even the

31. Indeed, the New Hampshire SupremeCourt has held that a three-year license sus-pension could not be considered ‘‘punish-ment’’ sufficient to invoke a double jeopardyapplication. State v. Liakos, 142 N.H. 726,709 A.2d 187, 191 (1998).

32. Noscitur a sociis is defined as ‘‘[a] canonof construction holding that the meaning ofan unclear word or phrase should be deter-mined by the words immediately surroundingit.’’ Blacks Law Dictionary 1084 (7thed.1999). Its use is somewhat paradoxicalbecause they contend there is nothing unclearin § 31–27–2.2.


taking of a small sample of breath, blood,or urine from an alcohol- or drug-impaireddriver would inflict a profound and lastingharm or would enhance the ‘‘real danger acocktail of blood, needles and a resistant,intoxicated motorist presents to those whoattempt to subdue the [alcohol or drug-laden] suspect in order to draw blood.’’

It is difficult for me to accept the opin-ion that Rochin labels the simple proce-dure utilized in the taking of a blood sam-ple from a chemically-impaired driver as asort of medieval torture concocted in somedark medieval dungeon, and which law en-forcement officials should never be permit-ted to utilize in attempting to prosecute analcohol- or drug-impaired driver. Rochin,in fact, was virtually emasculated by theUnited States Supreme Court less thanfive years after it was decided. See Brei-thaupt v. Abram, 352 U.S. 432, 77 S.Ct.408, 1 L.Ed.2d 448 (1957). What JusticeGoldberg and the Chief Justice in this casetoday view as constituting a ‘‘cocktail ofblood and needles,’’ the United States Su-preme Court in Breithaupt views differ-ently:

‘‘Modern community living requiresmodern scientific methods of crime de-tection lest the public go unprotected.The increasing slaughter on our high-ways, most of which should be avoidable,now reaches the astounding figures onlyheard of on the battlefield. The States,through safety measures, modern scien-tific methods, and strict enforcement oftraffic laws, are using all reasonablemeans to make automobile driving lessdangerous.

‘‘As against the right of an individualthat his person be held inviolable, evenagainst so slight an intrusion as is in-volved in applying a blood test of thekind to which millions of Americans sub-mit as a matter of course nearly everyday, must be set the interests of societyin the scientific determination of intoxi-cation, one of the great causes of themortal hazards of the road. And themore so since the test likewise may es-

tablish innocence, thus affording protec-tion against the treachery of judgmentbased on one or more of the senses.Furthermore, since our criminal law isto no small extent justified by the as-sumption of deterrence, the individual’sright to immunity from such invasion ofthe body as is involved in a properlysafeguarded blood test is far outweighedby the value of its deterrent effect dueto public realization that the issue ofdriving while under the influence of alco-hol can often by this method be takenout of the confusion of conflicting con-tentions.’’ Id. at 439–40, 77 S.Ct. at 412,1 L.Ed.2d at 452–53.

The Supreme Court additionally notedthat:

‘‘due process is not measured by theyardstick of personal reaction or thesphygmogram of the most sensitive per-son, but by that whole community senseof ‘decency and fairness’ that has beenwoven by common experience into thefabric of acceptable conduct. It is onthis bedrock that this Court has estab-lished the concept of due process. Theblood test procedure has become routinein our everyday life. It is a ritual forthose going into the military service aswell as those applying for marriage li-censes. Many colleges require suchtests before permitting entrance and lit-erally millions of us have voluntarilygone through the same, though a longer,routine in becoming blood donors.Likewise, we note that a majority of ourStates have either enacted statutes insome form authorizing tests of this na-ture or permit findings so obtained to beadmitted in evidence. We thereforeconclude that a blood test taken by askilled technician is not such ‘conductthat shocks the conscience,’ Rochin, su-pra, at 172[, 72 S.Ct. 205], nor such amethod of obtaining evidence that it of-fends a ‘sense of justice,’ Brown v. Mis-sissippi, 1936, 297 U.S. 278, 285–286, 56S.Ct. 461, 464–465, 80 L.Ed. 682.’’ Brei-


thaupt, 352 U.S. at 436–37, 77 S.Ct. at410–11, 1 L.Ed.2d at 451–52.

I also question the misplaced emphasisin Justice Goldberg’s opinion upon the ina-bility of the state’s appellate counsel torespond in detail to a hypothetical questionposed at oral argument regarding themanner in which a suspected alcohol- ordrug-impaired driver’s blood sample wouldbe taken. Appellate counsel’s response,whatever it might have been, would havebeen of no consequence. The Legislaturehas long ago, proscribed the procedure tobe employed in the taking of a suspecteddriver’s blood sample. In misdemeanorprosecutions under § 31–27–2, there is aclearly established procedure set out forthe chemical analysis of a suspected driv-er’s breath, blood or urine. That proce-dure requires such testing to be undertak-en only with equipment approved by thedirector of the state Department ofHealth, and administered ‘‘by an autho-rized individual.’’ In addition, the driverwho is suspected of being under the influ-ence of alcohol or drugs must be affordedthe opportunity to have an additionalchemical test performed by a doctor orprofessional of his or her own choosing,and the officer arresting or so chargingthe person must notify the suspected driv-er of that right and afford him or her areasonable opportunity to exercise thatright. Refusal to permit that additionalchemical test within a reasonable timewould render inadmissible any evidencederived from the original test report.

In sum, I believe that such statutorysafeguards as described above effectivelyanswer the concerns of Justice Goldbergand the Chief Justice. They eliminate anypotential risks associated with the adminis-tering of those chemical tests and furtherprovide the suspected alcohol- or drug-impaired driver with a sufficient opportu-nity to take additional chemical tests in anenvironment and a manner substantially ofhis or her own choosing. While JusticeGoldberg’s opinion expresses remarkableand compassionate, but certainly mis-

placed, concern for the rights of alcoholand drug-laden drivers on our public high-ways, I cannot help but observe that therights of the general public to travel thosesame roads with some modicum of safetyis almost completely ignored in their calcu-lus.

Also ignored in that calculus is the un-fortunate effect their response to questionone will have on all future felony prosecu-tions of persons charged with driving un-der the influence resulting in death or insevere personal injuries to some unfortu-nate person or persons.

In light of what a majority of this Courttoday opines, the Legislature’s recently en-acted, and much heralded, lowering of thestatutory under the influence presumptionfrom one tenth of one percent to oneeighth of one percent effectively has beenneutralized and essentially becomes use-less. See P.L.2000, ch. 264. The Legisla-ture’s good intention in hopes of assistingstate prosecutors to rid our highways ofalcohol- and drug-impaired drivers causingthe carnage on our public highways hasbeen scuttled. All that a driver who issuspected of being impaired and who hascaused a highway fatality need do to avoidconviction and imprisonment is to say ‘‘no’’to an arresting officer’s request that he orshe consent to the giving of a sample of hisor her breath, blood or urine for purposesof the chemical testing. In that event, inthe absence of an available eyewitness will-ing to testify at trial as to the manner ofthe defendant’s driving, the suspected alco-hol- or drug-impaired driver, whose vehiclehas just killed or maimed some innocentperson or persons on a public highway, willavoid conviction and jail. His or her onlypunishment simply then will be a civil ‘‘tapon the wrist’’ for refusing to consent to thechemical testing procedure. That ‘‘tap onthe wrist’’ could be but a short suspensionof his or her license to operate and a smallfine.

Justice Lederberg joins with me in con-cluding that breath, blood and urine chem-ical testing laws never were intended to


protect alcohol- or drug-impaired driverswhose impairment brings about and causesfatal highway collisions. We believe thatsuch laws were intended instead to protectthe public by enhancing the ability of stateprosecutors to deal effectively with and toconvict those particular drivers (White, 598A.2d at 1211), and ‘‘to rid our highways ofthe drunk driving menace.’’ Brice, 526A.2d at 649.

II


‘‘Does the statutory language of RIGL31–27–2.1, the Breathalyzer RefusalStatute, preclude members of law en-forcement from obtaining a judicially au-thorized search warrant to seize a defen-dant’s blood for alcohol or drug testing?’’

We are asked in this certified questionto decide whether, in a prosecution fordriving under the influence, death result-ing, pursuant to § 31–27–2.2, law enforce-ment officers are precluded by § 31–27–2.1from obtaining samples of a defendant’sbreath, blood or urine pursuant to a judi-cially authorized search warrant, procuredpursuant to G.L. § 12–5–2, following a de-fendant’s refusal to consent to the takingthereof.

I would respond to that question in thenegative. My reason for so doing, I be-lieve, is dictated by our long-standing ruleof statutory interpretation that positswhen the language of a statute is clearand unambiguous this Court should notsearch beyond the statute for a differentmeaning because ‘‘[i]n such a case thestatute declares itself.’’ Bouchard v.Price, 694 A.2d 670, 680 (R.I.1997) (Flan-ders, J., concurring). ‘‘[A] ‘court is not atliberty to indulge in a presumption thatthe Legislature intended something morethan what it actually wrote in the law.’ ’’In the Matter of the Civil Commitment ofJ.G., 322 N.J.Super. 309, 730 A.2d 922,929–30 (Ct.App.Div.1999) (quoting Gra-ham v. City of Asbury Park, 64 N.J.Su-per. 385, 165 A.2d 864 (Ct.Law.Div.1960),

rev’d on other grounds, 69 N.J.Super. 256,174 A.2d 244 (Ct.App.Div.1961), aff’d, 37N.J. 166, 179 A.2d 520 (1962)). Addition-ally, I respond to the certified question inthe negative because I believe that thelegislative purpose and intent that prompt-ed the enactment of § 31–27–2.1 becomesreadily apparent from its legislative originand history, a genesis that is entirely sep-arate and distinct from that of § 31–27–2.2.

The concept of requiring consent firstwas conceived in 1959 when the Legisla-ture amended § 31–27–2. See P.L.1959,ch. 101, § 1. That amendment, as noted bythe late Justice Kelleher in State v. Lussi-er, 511 A.2d 958, 959 (R.I.1986), allowedfor the admission of evidence gained fromthe chemical analysis of a defendant’sbreath, blood or urine sample in a § 31–27–2 misdemeanor prosecution for drivingunder the influence. Admissibility of thatevidence, however, was conditioned uponthe defendant’s prior consent to the chemi-cal testing procedure, and upon additionalcompetent evidence being presented at tri-al ‘‘bearing on the issue of whether thedefendant was in fact under the influenceof intoxicating liquor.’’ Id.

The Legislature had envisioned its 1959amendment to § 31–27–2 as a valuablemeans of assisting city, town and state lawenforcement officials to more expeditiouslydispose of the great numbers of driving-under-the-influence cases coming into thevarious District Courts. That legislativeaim, however, fell far short of accomplish-ing its intended goal, which was to encour-age the entry of pleas by defendants in§ 31–27–2 misdemeanor prosecutions andthus avoid the necessity for a trial in thosecases. However, the amendment providedno incentive for a defendant’s plea becauseit failed to provide any penalty for refusingto consent.

Seven years later, the Legislature onceagain took aim at curbing the escalatingcarnage on our public highways caused bydrivers being under the influence of alco-hol or drugs. In 1966, the Legislature


amended chapter 27 of title 31 by adding§ 31–27–2.1. See P.L.1966, ch. 215, § 1.That statute introduced for the first timein Rhode Island, a so-called driver’s ‘‘im-plied consent’’ law, declaring that any per-son operating a motor vehicle within thestate is deemed to have given consent tothe chemical testing of his or her breath,blood or urine.

Incorporated as part of that new impliedconsent law were statutory presumptionsthat presumed a defendant to have beenoperating under the influence if the chemi-cal test performed indicated the presenceof .10 percent or more, by weight, of alco-hol in the defendant’s blood. Thus, for thefirst time in a prosecution for driving un-der the influence, that presumption alonecould support a defendant’s conviction pur-suant to § 31–27–2. That implied consentlaw, and its testing procedure providingfor the chemical analysis of a motorist’sbreath, blood or urine, only could havebeen enacted and intended to aid and as-sist in the prosecution of misdemeanorviolations for driving under the influence,pursuant to § 31–27–2, because in 1966there was no other then-existing statutethat prohibited anyone from operating amotor vehicle in this state while under theinfluence of alcohol or drugs.

Thus, the Legislature, it must be noted,had a dual purpose for enacting § 31–27–2.1 in 1966. The first and primary pur-pose, as discussed supra, was to assist city,town and state police departments in moreeffectively and expeditiously prosecutingand disposing of misdemeanor driving un-der the influence cases.33 Scores of suchdriving-under-the-influence cases had beenconstantly clogging the various DistrictCourt trial calendars, primarily becauseprior to the enactment of § 31–27–2.1, ex-pert medical opinion was required to bepresented in the trial of such cases toprove the ‘‘under-the-influence’’ element in

that misdemeanor offense and it was diffi-cult to schedule and arrange for the pre-sentation of that expert evidence frommedical doctors. See, e.g., State v. Poole,97 R.I. 215, 197 A.2d 163 (1964). By virtueof § 31–27–2.1, however, the chemical testresult of a defendant’s breath, blood, orurine sample was made admissible as evi-dence of the amount of alcohol in a defen-dant’s blood, and if it revealed an alcoholconcentration equal to or exceeding one-tenth of 1 percent, that evidence could leadto a conviction if coupled with other com-petent evidence of the relationship of thatpercentage of alcohol upon the defendant’sability to safely operate his or her vehicle.

Secondly, the Legislature anticipatedthat by making chemical test results ad-missible as proof of culpability, a defen-dant, after being tested and found to havethe presumptive amount of alcohol in hisor her blood, breath or urine, then wouldrealize the futility and risk of insistingupon trial and incurring the attendant le-gal expenses and, instead, would readilyopt to enter a plea. However, that legisla-tive expectation never materialized. TheLegislature in its 1966 enactment, al-though providing for chemical testing,made that testing procedure again subjectto the defendant’s prior consent to be test-ed and neglected to provide for any crimi-nal or financial penalty for those suspecteddrivers who refused to give their consent.Thus, with little incentive to consent, fewdefendants did consent. From 1966 on-ward, all will acknowledge that driving-under-the-influence cases escalated innumbers and simply languished in the Dis-trict Courts.

In 1982, the Legislature, in hopes of‘‘beefing up’’ the evidentiary effect ofchemical testing result evidence in § 31–27–2 misdemeanor prosecutions, and hop-ing to avoid unnecessary and time-consum-

33. ‘‘As chemical testing has evolved into amuch relied on prosecution tool, ‘impliedconsent’ laws have likewise evolved to de-feat the drunk driver’s inclination to refuseto consent to such testing. Implied consent

laws encourage submission to chemicaltesting by making automatic license suspen-sion the cost of refusing to be tested.’’ 1Essen–Erwin, Defense of Drunk DrivingCases, § 4.01 at 4–5 (1998).


ing trials in those misdemeanor cases,amended § 31–27–2. See P.L.1982, ch.176, § 1. That amendment deleted from§ 31–27–2 its previous requirement for ad-ditional competent evidence of intoxicationin addition to the chemical test results inprosecutions pursuant to that statute, butagain did little to assist in unclogging thelogjam of misdemeanor driving-under-the-influence cases then pending in the Dis-trict Courts.

In May 1983, the Legislature, obviouslyaware of, and now more alarmed by theescalating numbers of highway deaths andserious injuries being caused by alcohol-and drug-impaired drivers on our statehighways, enacted two consecutive statuto-ry amendments aimed at finally curbingthat carnage. First, P.L.1983, ch. 227, wasenacted to amend section 1(b) of § 31–27–2. That amendment provided for a defi-nite finding of intoxication and guilt ifchemical test result evidence indicated aone-tenth of 1 percent or more blood alco-hol concentration in a defendant’s blood.The language of the amendment provided:

‘‘Any person charged under subsec-tion (a) of this section whose blood alco-hol concentration is one-tenth of 1% ormore by weight as shown by a chemicalanalysis of a blood, breath or urine sam-ple shall be guilty of violating subsection(a) of this section. This provision shallnot preclude a conviction based on otheradmissible evidence.’’ P.L.1983, ch. 227.

As a result of P.L.1983, ch. 227, the neces-sity for prosecution expert testimony toestablish and relate the effect of that per-centage of alcohol to a defendant’s abilityto safely operate his or her vehicle waseliminated. The second amendment enact-ed in May 1983, amended § 31–27–2.1. SeeP.L.1983, ch. 228. What divides this Courttoday in responding to Certified QuestionTwo is the wording employed by the Leg-islature in one particular sentence in thatamendment. That sentence reads:

‘‘If such a person having been placedunder arrest refuses upon the request ofa law enforcement officer to submit to a

test, as provided in section 31–27–2, asamended, none shall be given, but anadministrative judge of the division ofadministrative adjudication, upon receiptof a report of a law enforcement officerthat he [or she] had reasonable groundsto believe the arrested person had beendriving a motor vehicle within this stateunder the influence of intoxicating li-quor, toluene, or any controlled sub-stance as defined in chapter 21–28 of thegeneral laws, or any combination there-of, that the person had been informed ofhis or her rights in accordance withSection 31–27–3, that the person hadbeen informed of the penalties incurredas a result of noncompliance with thissection, and that the person had refusedto submit to the test upon the request ofa law enforcement officer, shall prompt-ly order that the person’s operator’s li-cense or privilege to operate a motorvehicle in this state be immediately sus-pended and that the person’s license besurrendered within five (5) days of no-tice of suspension.’’ P.L.1983, ch. 228,§ 1.

It is clear to me that the Legislatureintended the implied consent law original-ly enacted in 1966 for use only in misde-meanor prosecutions for driving under theinfluence, pursuant to § 31–27–2. As not-ed supra, in 1966 there was no other stat-ute that made driving while under theinfluence a criminal offense. So, out ofnecessity and plain common sense, theimplied consent to chemical testing proce-dure enacted by the Legislature had no-where else to go but into § 31–27–2, par-ticularly because the Legislature in 1982,by way of P.L.1982, ch. 176, already hadprovided for the chemical testing proce-dure in misdemeanor prosecutions, pursu-ant to § 31–27–2.

In 1983, the Legislature enacted P.L.1983, ch. 228, and provided for the imposi-tion of a financial penalty upon a defendantwho refused to consent to chemical testing.In doing so, I believe that the Legislatureenvisioned that a suspected driver more


readily would opt to consent to a chemicaltest rather than incur the financial penaltythat would result from his or her refusal toconsent. Of course, any chemical testingstill would have to be performed in accor-dance with the testing procedure providedfor in § 31–27–2.

Common sense mandates that the minorpenalty that is required to be imposedupon a non-consenting defendant pursuantto § 31–27–2.1 fits only into the misde-meanor offense that is proscribed in § 31–27–2 and certainly does not fit into thefelony offense proscribed in § 31–27–2.2. Iam hard-pressed to believe that the major-ity actually can believe that a small fineand short license suspension is a fittingpenalty for a defendant’s refusal to con-sent in a driving under the influence, deathresulting, felony prosecution, pursuant to§ 31–27–2.2, knowing that a refusal coulddeprive the state of its ability to prove the

defendant’s guilt, and would allow that de-fendant to walk free and avoid a possiblefifteen-year jail sentence.

I would also point out that the UniformVehicle Code and Model Traffic Ordinance,prepared by the National Committee onUniform Traffic Laws and Ordinances,specifically excludes any requirement for adefendant’s prior consent to chemical test-ing in felony driving-under-the-influencecases in which death or serious injuries areinvolved. The Uniform Vehicle Code pro-vides that a driver, when arrested in thosefelony cases, can be ‘‘compelled by a policeofficer to submit to a test or tests ofdriver’s blood, breath or urine to deter-mine the alcohol concentration or the pres-ence of other drugs.’’ Uniform VehicleCode § 6–210—‘‘Chemical test of driversin serious personal injury or fatal crashes’’(1992).34

34. The majority, in support of their responsesto the certified questions in this proceeding,have cited to several case holdings from otherjurisdictions. Those case holdings interpretonly a particular statute in a particular stateproviding for implied consent chemical test-ing procedures. The statutes that were inter-preted in those cases, however, are totallyinapposite from G.L.1956 § 31–27–2 and§ 31–27–2.1, our Rhode Island implied con-sent statutes.

For example, in State v. Bellino, 390 A.2d1014 (Me.1978), cited in the majority opin-ion, the implied consent statute at issue inMaine provided for its provisions to be ap-plicable in all criminal prosecutions for‘‘violation of any of the provisions ’’ in thatstate’s motor vehicle code. Id. at 1023.The New Hampshire statute construed inState v. Berry, 121 N.H. 324, 428 A.2d 1250(1981), also cited by the majority, specifi-cally provided for its implied consent pro-visions to be applicable in ‘‘any offensearising out of acts alleged to have beencommitted while *** driving a motor vehi-cle while intoxicated.’’ Id. at 1251. (Em-phasis added.) Those particular impliedconsent statutory provisions, like the stat-utes at issue in each of the other casescited in the majority opinion, are totallydifferent from each other and also com-pletely different and distinguishable fromour Rhode Island statute. The plain lan-guage of § 31–27–2 specifically: makeschemical testing procedures applicableonly in ‘‘any criminal prosecution for a

violation of subsection (a)’’ (see § 31–27–2(c)); pertains only to misdemeanor driv-ing-under-the-influence violations (see§ 31–27–2(b)(2)); provides that the chemi-cal testing procedure set out in § 31–27–2pertains only to ‘‘any person charged un-der subsection (a)’’ (see § 31–27–2(b)(1)).

To realize the uniqueness of our RhodeIsland statute, one need only to review thecomprehensive analysis of the various im-plied consent statutes from each of the fiftystates that is provided in the statutory ap-pendix section in Volume 4 of the treatiseby Essen–Erwin, Defense of Drunk DrivingCases (2000). That statutory review dis-closes that some states, such as Arizona,have implied consent statutes that are madeapplicable in any offense arising out of actsalleged to be in violation of the Motor Vehi-cle Code. In those states, if a defendantrefuses to consent to chemical testing, notests can be undertaken except pursuant toa search warrant. That statutory reviewalso discloses that in some other states,implied consent provisions are by specificstatutory mandate made applicable in allmotor vehicle code violation prosecutionsin which liquor or drugs are alleged to beinvolved. In yet others states, the impliedconsent statutes are restricted to misde-meanor prosecutions only, but again, onemust be careful to note that in Maryland,for example (cited by the majority), thecrimes of ‘‘manslaughter by motor vehicle’’and ‘‘homicide by motor vehicle’’ are


I conclude from the legislative historysurrounding § 31–27–1 (driving so as toendanger, death resulting); § 31–27–2(driving under the influence—misdemean-or); § 31–27–2.1 (refusal to submit tochemical test); § 31–27–2.2 (driving underthe influence of liquor or drugs resulting indeath); and § 31–27–2.6 (driving underthe influence of liquor or drugs, resultingin serious bodily injury), that the Legisla-ture intended to treat the alcohol- or drug-impaired driver who had just killed and/orpermanently maimed some innocent per-son on a public highway quite differentlythan a misdemeanor driving-under-the-in-fluence defendant, charged simply with er-ratic driving or who had been involved in aminor fender-bender collision involving nodeath or injuries.

In the usual run-of-the-mill misdemean-or case, pursuant to § 31–27–2(a), the Leg-islature never intended to subject thosehundreds of suspected drivers, who annu-ally are charged, to costly and time con-suming chemical testing without first giv-ing their consent. The wording employedin § 31–27–2.1, that ‘‘none shall be given,’’was only intended to preclude any suchchemical testing in those misdemeanorprosecutions, even if attempted pursuantto a judicially authorized search warrant.Like the Uniform Vehicle Code, I believe,however, that § 31–27–2.1 has no applica-tion to felony prosecutions for driving-un-der-the-influence in which death or seriousinjuries have been inflicted. Had the Leg-islature ever intended for § 31–27–2.1 tobe applicable in those felony statutes, it

certainly knew how to do so when enactingthose felony statutes, yet it did not do so.This Court should not read into or judicial-ly legislate into those statutes what theLegislature never intended. See Lopes v.Phillips, 680 A.2d 65, 69 (R.I.1996); Uni-versal Winding Co. v. Parks, 88 R.I. 384,391, 148 A.2d 755, 759 (1959).

As Justice Sutherland in West Coast Ho-tel Co. v. Parrish, 300 U.S. 379, 404, 57S.Ct. 578, 587, 81 L.Ed. 703, 715 (1937),aptly noted, ‘‘[t]he judicial function is thatof interpretation; it does not include thepower of amendment under the guise ofinterpretation .’’ Justice Flanders, writingalong similar lines some time ago in hisdissent in Kaya v. Partington, 681 A.2d256 (R.I.1996), observed what I believebears repetition in this case. He said:

‘‘[T]he reality is, when, as here, a statuteis silent on the subject at issue, wejudges have absolutely no clue aboutwhat result the Legislature would haveintended had it ever considered thequestion presented, especially when wedepart from the text of a statute andattempt to find some hidden legislativedesign or intent that answers a problemnot resolved by what the Legislatureactually said.’’ Id. at 264.

He further explained:‘‘ ‘For purposes of judicial enforcement,the ‘policy’ of a statute should be drawnout of its terms, as nourished by theirproper environment, and not, like nitro-gen, out of the air.’ *** Our goal is toconstrue the statute as it is written and

deemed misdemeanors. See Loscomb v.State, 45 Md.App. 598, 416 A.2d 1276(1980). Further, it should be noted thatmany states, following the Uniform VehicleCode, have statutes providing that their im-plied consent provisions are not applicablein under the influence felony death andserious injury prosecutions, and in thoseinstances, chemical testing procedures canbe compelled by the arresting officials. See,e.g., Vermont Statutes Ann. title 23, ch. 13,§§ 1201(c) and 1202(f) (1999).

The conclusion that one must inevitablydraw after reviewing the various impliedconsent statutes enacted by each of the fifty

states is that generalizations are virtuallyimpossible to arrive at because each statestatute has its own unique virtues andfaults. See generally Annotation, Vitauts M.Gulbis, Admissibility in Criminal Case ofBlood–Alcohol Test Where Blood was TakenDespite Defendant’s Objection or Refusal toSubmit to Test, 14 A.L.R.4th 690 (1982).Our Rhode Island statute therefore must beinterpreted as written, and applied as in-tended by the Legislature, namely to assistin the prosecution of alcohol- and drug-impaired motor vehicle operators, and notas a statutory shield to protect them fromprosecution.


not to divine sound public policy out oflegislative silence, references to imag-ined legislative intentions, or our ownpredilections. As Justice Frankfurteronce warned, ‘The search for signifi-cance in the silence of [the Legislature]is too often the pursuit of a mirage. Wemust be wary against interpolating ournotions of policy in the interstices oflegislative provisions.’

‘‘The reason to be on guard is thatwhen legislative silence is confronted,the temptation is omnipresent for ***the court to intrude its own preferredpolicies into the law under the euphem-istic banner of ‘filling in a legislativegap’ or ‘interstitial’ lawmaking.’’ Kaya,681 A.2d at 267–68.

Here, it is beyond dispute that § 31–27–1 and § 31–27–2.2 are ‘‘legislatively silent’’about whether a defendant in a felonyprosecution pursuant to those statutes mayrefuse to consent to a chemical testingrequest—or in the case of a refusal—whether that test can be compelled by ajudicially authorized search warrant. Ac-cordingly, in the absence of any such pro-hibiting language in § 31–27–1 and § 31–27–2.2, I believe that, pursuant to a judi-cially authorized search warrant, the stateshould be permitted to take a breath,blood or urine sample for purposes ofchemical testing when a defendant, who ischarged with a violation of either of thosefelony statutes, refuses to comply with arequest for the taking and testing thereof.

Justice Lederberg concurs with me inthe above and we would respond in thenegative to Certified Question Two.

III


‘‘If R.I.G.L. § 31–27–2.1 does precludelaw enforcement from obtaining a searchwarrant, is this an unconstitutional limi-tation on the judicial authority to issuesearch warrants as provided in Article 5of the Rhode Island Constitution andRhode Island General Laws 12–5–1?’’

In light of my responses proffered toCertified Questions One and Two, any re-sponse to question three becomes unneces-sary. However, because of the responseproffered by the majority concerning G.L.1956 §§ 12–5–1 and 12–5–2, I would simplypoint out that until the United States Su-preme Court reverses its holding inSchmerber v. California, 384 U.S. 757, 86S.Ct. 1826, 16 L.Ed.2d 908 (1966), anduntil this Court reverses its holding inState v. Locke, 418 A.2d 843 (R.I.1980), asearch warrant to seize a sample of adefendant’s breath, blood or urine still islawfully permitted pursuant to § 12–5–2,where probable cause exists. Section 12–5–2 permits the seizure of any propertythat is used ‘‘in violation of law, or as ameans of committing a violation of law; or*** [w]hich is evidence of the commissionof a crime.’’ Section 12–5–2(3)(4).

I do not agree with the majority’s gener-al statement that blood itself is not proper-ty and thus not evidence of the commissionof a crime. Blood itself can, in manyinstances, be evidence of the commission ofa crime. In the real world, which certainlyincludes the State of Rhode Island, a bot-tle of liquor is property. It is propertythat can be the subject of larceny or em-bezzlement and is even taxed as property.Likewise, a cache of cocaine in someone’spocket, car, or dwelling also is consideredto be property. The fact that the liquor ordrugs are ingested and used by someonein violation of law does not transform thatproperty into non-property.

The majority, however, advances theproblematic contention that because theyare ‘‘not satisfied that one’s bodily fluid isproperty’’ or ‘‘evidence of the commissionof a crime’’ it cannot be seized pursuant to§ 12–5–2. What that contention ignores,however, is that it is not the blood that isthe evidence being sought by the searchwarrant, but instead the amount of alcoholor cocaine that is contained in, and isforeign property in the blood. That alco-hol and that cocaine was ‘‘property’’ whenit went into the defendant’s blood stream,and it is still property when later detected,


isolated and identified by chemical analy-sis. The bodily fluid or blood is not theevidence sought by the search warrant, itis instead the alcohol and illegal cocainethat is contained in the blood and whichconstitutes evidence of a defendant’s com-mission of the crime of driving-under-the-influence. Accordingly, § 12–5–2 permitsit to be seized from wherever that incrimi-nating evidence reasonably can be found.

IV

Conclusion

For the reasons above set out, JusticeLederberg and I would respond to Certi-

fied Questions One and Two in the nega-tive. Because of the nature of our re-sponse to those questions, we need notrespond to Certified Question Three, butour response to that question reasonablymight be indicated from our brief discus-sion relating to that question.

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1156 R. I. 764 ATLANTIC REPORTER, 2d SERIES · 2019. 9. 28. · 1156 R. I. 764 ATLANTIC REPORTER,...

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