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State v. DiStefano12/20/2000
manate from the General Assembly. Further, we answer question two in the affirmative, and hold that in cases in which a motorist has refused consent, members of law enforcement are precluded from obtaining a search warrant to seize blood for alcohol or drug testing.
II. Question Three
Question three requires this Court to decide whether a determination that § 31-27-2.1 precludes law enforcement personnel from obtaining a search warrant for the seizure of blood amounts to an unconstitutional limitation of the judicial authority to issue search warrants as provided in article 5 of the Rhode Island Constitution and G.L. 1956 § 12-5-1.
To properly answer this question, we must construe still another portion of the General Laws, namely §§ 12-5-1 and 12-5-2, which deal with the issuance of search warrants. Section 12-5-1 provides that a search warrant may be issued by any judge of the District Court and that "[n]othing contained in this chapter shall be so construed as to restrain the power of the justices of the supreme or superior courts by virtue of § 8-3-6 to issue a search warrant." *fn25 However, the authority for the issuance of a search warrant is found in § 12-5-2, which provides:
"Grounds for issuance. -- A warrant may be issued under this chapter to search for and seize any property:
(1) Stolen or embezzled, or obtained by any false pretense, or pretenses, with intent to cheat or defraud within this state, or elsewhere;
(2) Kept, suffered to be kept, concealed, deposited, or possessed in violation of law, or for the purpose of violating the law;
(3) Designed or intended for use, or which is or has been used, in violation of law, or as a means of committing a violation of law; or
(4) Which is evidence of the commission of a crime."
The only portion of § 12-5-2 that is remotely relevant to this case is subsection (4), which authorizes the issuance of a warrant for the seizure of any "property" that is "evidence of the commission of a crime." A survey of the remainder of our statutes discloses no authorization to issue a search warrant for the withdrawal and seizure of blood or other bodily fluids. The seizure of a suspect's blood involves the use of a needle and the location and puncture of a vein to extract the fluid. Although not as physically intrusive as the forcible extraction of a prisoner's stomach contents in search of evidence of a crime, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183, 190 (1952), a blood draw is nonetheless an intrusion beyond the body's surface that affects one's human dignity and privacy. Schmerber, 384 U.S. at 769-70, 86 S.Ct. at 1835, 16 L.Ed.2d at 919. *fn26 Further, although the alcohol content of a motorist's blood is relevant to the degree of intoxication in a DUI trial, we are not satisfied that one's bodily fluid is "property" or evidence of the commission of a crime. We note that it is not the blood itself that is the "evidence of the commission of a crime," but rather the test results that are relevant in a criminal trial. Thus, we are of the opinion that the General Assembly, by its enactment of § 31-27-2.1, as well as the limited power to issue search warrants that has been conferred upon the judiciary by § 12-5-2, has not specifically authorized the issuance of a search warrant for such a purpose. Moreover, we are ever mindful that the Rhode Island Constitution deals with search warrants only in the negative sense. Article 1, section 6, of the Rhode Island Constitution reads as follows:
"Search and seizure. -- The right of the people to be secure in their persons, papers and possessions, against unreasonable searches and seizures, shall not be
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