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State v. DiStefano12/20/2000
y, barring the chemical test results of a sample of a non-consenting suspected alcohol-or drug-impaired drivers' breath, blood or urine in § 31-27-1 and § 31-27-2.2 felony prosecutions, serves to ignore and frustrate the Legislature's clearly expressed intent and mandate found in § 31-27-2. That statute, § 31-27-2, only requires a suspected operator's prior consent to chemical testing in misdemeanor no injury-fender-bender prosecutions, and not in felony prosecutions, pursuant to § 31-27-1 and § 31-27-2.2. Nothing can be clearer than the specific wording employed by the Legislature when enacting § 31-27-2(b)(1). That section says loud and clear that its prior consent to chemical testing requirement applies only to "[a]ny person charged under subsection (a)" of § 31-27-2, and subsection (a) specifically concerns only misdemeanor prosecutions. *fn29 It states:
" 31-27-2. Driving under influence of liquor or drugs. -- (a) Whoever operates or otherwise drives any vehicle in the state while under the influence of any intoxicating liquor, drugs, toluene, or any controlled substance as defined in chapter 28 of title 21, or any combination thereof, shall be guilty of a misdemeanor and shall be punished as provided in subsection (d) of this section.
(b)(1) Any person charged under subsection (a) of this section whose blood alcohol concentration is one-tenth of one percent (.1%) or more by weight as shown by a chemical analysis of a blood, breath, or urine sample shall be guilty of violating subsection (a) of this section. * * * (emphasis added)
(2) * * *
(c) In any criminal prosecution for a violation of subsection (a) of this section, evidence as to the amount of intoxicating liquor, toluene, or any controlled substance as defined in chapter 28 of title 21, or any combination thereof in the defendant's blood at the time alleged as shown by a chemical analysis of the defendant's breath, blood, or urine or other bodily substance shall be admissible and competent, provided that evidence is presented that the following conditions have been complied with:
(1) The defendant has consented to the taking of the test upon which the analysis is made. Evidence that the defendant had refused to submit to the test shall not be admissible unless the defendant elects to testify." (Emphasis added.) *fn30
I am unable to join with the majority of this Court who opine that chemical test result evidence of a defendant driver's breath, blood or urine, taken following an incident in which that defendant's vehicle has killed or permanently crippled some innocent person on our public highways, should be inadmissible and barred as evidence of impairment in the trial of the death-causing driver. The majority's "bar-all-prohibit-all" position serves but one senseless purpose, namely, to shackle our state prosecutors in their attempt to prosecute and convict defendants charged with felony violations of § 31-27-1 and § 31-27-2.2. It also serves, sub silencio, actually to revive and reinstate the Timms dicta rule, that for the past fourteen years only has coddled and insulated alcohol-and drug-impaired drivers from felony prosecution and conviction. Pursuant to what the majority does in this proceeding, those alcohol-or drug-impaired drivers who kill and maim innocent people can continue to escape felony prosecution simply by refusing to consent to an officer's request to take a breath, blood or urine sample.
In that event, the suspected felon then will be charged with failing to consent to give a breath, blood or urine sample for testing, a misdemeanor, the penalty for which will be a short license suspension and a small fine. That is a far cry from what the Legislature intended when it enact
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rhode Island DUI Attorneys
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