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State v. Anthony.5/28/1998
Appeal from County: SOURCE OF APPEAL: District Second Division
(96-3376)
Dissenting
Opinion begins on page 12
This case came before the Supreme Court on the petition for certiorari of the State of Rhode Island ex rel. Town of Middletown (petitioner or town) after the District Court found the respondent, John D. Anthony, not guilty of the charge of driving under the influence of alcohol in violation of G.L. 1956 § 31-27-2. We deny certiorari on double jeopardy grounds. It is our opinion, however, that the trial Justice erred in excluding breathalyzer test results after having found that the respondent had not been advised that an out-of-state conviction of driving under the influence of alcohol or drugs could be used to enhance the penalty for a subsequent Rhode Island conviction for the same offense. The relevant facts of this case follow.
Facts and Procedural History
On November 4, 1996, Sergeant Joseph M. O'Toole (O'Toole) of the Middletown police department was dispatched to the scene of an automobile collision. The respondent was the driver of one of the two cars involved in the collision. After observing that respondent exhibited signs and indicia of alcohol intoxication, O'Toole administered a series of field sobriety tests to respondent, who performed the tests in an unsatisfactory manner and was placed under arrest for suspicion of driving under the influence of alcohol. The respondent was transported to the Middletown police department, where the Rights for Use at Station form (rights form) was read to him. The rights form advised respondent that he was suspected of having driven under the influence of alcohol and was being requested to submit to chemical testing to determine his blood alcohol concentration (BAC). The rights form further detailed his rights in respect thereto and cited the statutory penalties for refusal to submit to chemical testing as provided by § 31-27-2.1(a)(1-5). In relevant part, the rights form stated:
"You do not have to submit to a chemical test at my request. If you refuse, none shall be given. However, a report will then be sent to an Administrative Law Judge of the Administrative Adjudication Court and, upon receipt and review by a Judge, your Rhode Island driver's license or privilege to operate a motor vehicle in Rhode Island for non Rhode Island licensees, will be immediately suspended. After hearing, the following mandatory sanctions will be imposed if the charge is sustained.
(1) For a first violation within Rhode Island, driver's license or privilege to operate suspension for three (3) to six (6) months; fine of $200 to $500; public community service of ten (10) to sixty (60) hours; and a course on driving while intoxicated and/or alcohol or drug treatment.
(2) For a second violation within Rhode Island within five years, license or privilege to operate suspension for one (1) year to two (2) years; fine of $300 to $500; and alcohol and/or drug treatment.
(3) For a third or subsequent violation within Rhode Island within five years, license or privilege to operate suspension for two (2) to three (3) years; fine of $400 to $500; and alcohol or drug treatment. Prior to the reinstatement of a license to a person charged with a third subsequent violation within a three year period, a hearing shall be held before an Administrative Judge.
(4) In addition to the above penalties, all violators shall pay a highway assessment fee of $500 and an additional fee of $173. For determination of the period of license suspension, a prior violation shall also consist of any conviction of driving while under the influence of liquor and/or
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