Theodore H. Such, Jr., et al. v. State of Rhode Island, et al.

OCR transcription for search; preserved printed pages are authoritative

Supreme Court

No. 2007-21-A ppeal.
(PC 06-5840)

Theodore H. Such, Jr., et al.
V.

State of Rhode Island et al.

NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.

Supreme Court
No. 2007-21-Appeal.
(PC 06-5840)
Theodore H. Such, Jr., et al. 	:
v. 	:
State of Rhode Island et al. 	:
Present: Williams, C.J., Goldberg, Flaherty, and Suttell, JJ.
O P I N I O N
Justice Suttell, for the Court. 	“If you like laws and sausage, you should never watch
either one being made.”1 Otto von Bismark’s laconic observation is apropos to this appeal in
which we are asked to consider two legislative acts passed in the waning days of the 2005-2006
session of the General Assembly.
The State of Rhode Island appeals from a declaratory judgment entered in favor of
plaintiffs, Theodore H. Such, Jr., Eric Ahlborg, and Robert MacDonald. The central issue before
us focuses on the degree and type of penalty available against persons who refuse to submit to
chemical tests when law enforcement officers have reasonable grounds to suspect they have been
operating a motor vehicle under the influence of liquor or drugs.
Public Laws 2006, ch. 232 (chapter 232 or the refusal bill), and P.L. 2006, ch. 246
(chapter 246 or the budget bill), were signed by the Governor two days apart and each made
changes to the same statutory section, G.L. 1956 § 31-27-2.1 entitled “Refusal to submit to
chemical test” (the refusal statute). 	Chapter 232 added language to the refusal statute that
1 This quotation, or one of its many variants, is generally attributed to Otto von Bismark. 	An
earlier, but decidedly less gracious version: “Laws, like sausage, cease to inspire respect in
proportion as we know how they are made” is credited to Vermont lawyer and author John
Godfrey Saxe in an 1869 lecture. Ralph Keyes, The Quote Verifier 188 (2006).
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authorized increased penalties for refusal to submit to a chemical test. Chapter 246, signed two
days after chapter 232, inserted a new subsection in the refusal statute that imposed a $200
assessment. P.L. 2006, ch. 246, art. 10, § 1. 	Chapter 246, however, did not include the newly
enacted amendments to the refusal statute set forth in chapter 232; instead, it republished the
refusal statute as it had existed before the enactment of chapter 232. 	The plaintiffs contend
chapter 246 repealed the operative language in chapter 232 that imposed increased penalties for
refusal to submit to a chemical test. 	For the reasons set forth in this opinion, we reverse the
judgment of the Superior Court.
I
Facts and Procedural History
The sequence of legislative events is not disputed by the parties. 	On January 3, 2006,
members of the House of Representatives introduced 2006-H 6700, the refusal bill, which
proposed amendments to the refusal statute. Specifically, the refusal bill in its final form made
the following changes to the refusal statute: it allowed district court judges, in addition to traffic
tribunal judges, to impose penalties; the range for a license revocation increased from a span of
three to six months to a span of six months to a year; second and third offenders became subject
to criminal liability, increased fines, and more community service;2 and the Attorney General
was required to submit information on the charging and disposition of cases brought under
§§ 31-27-1 to 31-27-2.8 and report on the number of related fatalities in an Annual Impaired
2 For second offenders within a five-year period, the refusal bill authorized prison time of up to
six months, changed the range of monetary fine from $300 to $500 to between $600 and $1,000,
and ordered the performance of 60 to 100 hours of community service. 	For third offenders
within a five-year period, the refusal bill authorized prison time of not more than one year,
changed the fine range from $400 to $500 to between $800 to $1,000, ordered a minimum of 100
hours of community service, and changed the maximum allowable time for the suspension of the
operator’s license from three years to five years. P.L. 2006, ch. 232, § 1.
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Driving Report. 	The refusal bill, designated as “2006-H 6700 Substitute B, as amended,” was
passed by the Senate on June 23, 2006, and by the House, in concurrence, on June 24. 	The
House transmitted the bill to the Governor on the same day, June 24, and the Governor signed it
into law on June 28, 2006.3
Meanwhile, on February 8, 2006, members of the House introduced the budget bill,
2006-H 7120, to make appropriations for the fiscal year ending June 30, 2007. 	The budget bill
contained forty-one articles concerning many areas of state government; one of the provisions,
Article 10, sought to add a new subsection to the refusal statute but otherwise left it untouched.
Specifically, Article 10 reproduced the language of the refusal statute verbatim as it then existed,
adding only a new subsection, § 31-27-2.1(b)(6), which said:
“In 	addition 	to 	any 	other 	fines 	and 	highway 	safety
assessments, a two hundred dollar ($200) assessment shall be paid
by any person found in violation of this section to support the
department of health’s chemical testing programs outlined in § 31-
27-2(4), 	which 	shall 	be 	deposited 	as 	general 	revenues, 	not
restricted receipts.”
The budget bill, marked as “2006-H 7120 Substitute A,” was passed by the House on June 19,
2006. 	The Senate passed it in concurrence on June 23, 2006, and it was transmitted to the
Governor on June 29. The Governor signed the budget bill into law on June 30, and it became
effective on July 1, 2006.4
The three plaintiffs in this case were stopped by police officers and suspected of
operating motor vehicles under the influence. 	On September 25, 2006, a North Kingstown
police officer stopped Theodore H. Such, Jr., and he was charged with refusing to submit to a
chemical test and driving under the influence of liquor or drugs. 	The North Kingstown police
3 A copy of 2006-H 6700 Substitute B, as amended (the refusal bill) is appended to this opinion
as Appendix A.
4 A copy of Article 10 of 2006-H 7120 Substitute A is appended to this opinion as Appendix B.
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cited the new penalties set forth in the refusal bill (chapter 232) to Mr. Such.5 On September 28,
2006, Eric Ahlborg was stopped by a Warwick police officer and subsequently charged with
refusing to submit to a chemical test. 	Mr. Ahlborg was informed of the new penalties in the
refusal bill. 	On October 1, 2006, Robert MacDonald was charged with refusing to submit to a
chemical test by the West Warwick police, and he also was presented with the new penalties in
the refusal bill.
Each plaintiff appeared before the Rhode Island Traffic Tribunal in November 2006.
When Mr. Such appeared before the tribunal, the magistrate judge granted his motion to continue
trial so that Mr. Such could seek a declaratory judgment and other relief in the Superior Court
relating to the alleged incongruities between the budget bill and the refusal bill. 	In a separate
proceeding, the tribunal granted similar relief to Mr. Ahlborg. 	Mr. MacDonald’s case, by
contrast, proceeded to trial, after which the magistrate judge imposed penalties authorized by the
refusal statute, including a $200 fine, a $500 highway safety assessment, a six-month suspension
of his license to operate,6 participation in a remedial program, and ten hours of community
service.
On November 8, 2006, Mr. Such filed a complaint for declaratory judgment, equitable
relief, and class action in the Superior Court. 	In pertinent part, Mr. Such complained that the
police incorrectly presented him with the increased penalties set forth in the refusal bill. 	Mr.
Such 	contended 	that 	the 	subsequent 	enactment 	of 	the 	budget 	bill 	negated 	the 	statutory
amendments made by the refusal bill. Mr. Ahlborg and Mr. MacDonald each moved separately
5 General Laws 1956 § 31-27-2.1(b) provides in part that a judge shall impose penalties upon
receipt of a report of a law enforcement officer stating, inter alia, that the arrested person “had
been informed of the penalties incurred as a result of noncompliance with this section” before he
or she refused to submit to a chemical test.
6 The magistrate judge stayed suspension of Mr. MacDonald’s driver’s license until January 30,
2007.
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to intervene; the Superior Court granted their motions on December 18, 2006 and January 4,
2007, respectively.
The state and plaintiffs filed cross-motions for summary judgment.7 The plaintiffs
argued that the budget bill either amended the refusal bill or implicitly repealed it such that the
increased penalties in the refusal bill had no legal force after the enactment of the budget bill.
The state, on the other hand, asserted that no conflict existed between the refusal bill and the
budget bill and that the budget bill did not repeal the newly enacted provisions in the refusal bill.
The Superior Court heard the cross-motions for summary judgment on January 16, 2007.
After oral argument, the Superior Court ruled from the bench that the budget bill and the refusal
bill were “two contradictory statutes, two statutes which are not reconcilable.”8 The trial justice
stated that a “big mistake was made relative to this legislation” and that “it should be abundantly
clear to anybody that there is great confusion here.” The court explained that “someone dropped
the ball” and that “it is not for this Court to speculate or guess about what was going on” with the
enactment of the budget bill two days after the refusal bill. The trial justice further emphasized
that the two statutes should be looked at “not from the point of view of lawyers,” but from “the
point of view of the people operating vehicles on our state highways who are subject to this or to
these statutes[.]” 	So viewed, the court explained that plaintiffs, or other persons similarly
situated, would be forced to speculate about possible criminal penalties if they read the budget
bill and the refusal bill concurrently.
7 Mr. Ahlborg filed a motion for summary judgment on January 4, 2007, and it was subsequently
joined by Mr. Such and Mr. MacDonald.
8 At the outset of the bench decision, the trial justice stated that the budget bill “passed in the
House on June 19th but was not passed in the Senate until June 29th, on which date it went to the
governor who then signed it on June 30th.” 	We note that the parties do not dispute that the
budget bill passed the Senate on June 23, 2006, not June 29.
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The court’s ruling employed several tenets of statutory construction. 	The trial justice
noted that the refusal bill criminalized the refusal to submit to a chemical test while the budget
bill was a civil statute, and that penal statutes must be construed strictly in favor of those against
whom the penalty is sought to be imposed. The court further reasoned that when a conflict exists
between two statutes, the last in time controls; and it also explained that the General Assembly is
presumed to have intended every word or provision of a statute to express a significant meaning.
Applying these principles to the facts of the case, the trial justice concluded that he could not
harmonize the substantive language of the refusal bill and the budget bill. The court emphasized
that the budget bill was signed into law after the refusal bill and that the budget bill reproduced
the statutory language in the refusal statute as it existed before the enactment of the refusal bill.
The court concluded, therefore, that the budget bill repealed the refusal bill by implication, and
that the refusal bill “had vitality only until such time as the governor signed into effect the so-
called [budget bill].”9 Accordingly, the Superior Court granted plaintiffs’ motion for summary
judgment on the complaint for declaratory judgment. 	On January 18, 2007, the Superior Court
entered a written order to the same effect.10
The Superior Court entered judgment on January 18, 2007, and the state timely appealed.
On February 16, 2007, this Court granted the state’s motion for stay pending appeal. Additional
facts will be supplied as needed.
9 At the conclusion of the bench decision, the state moved for a stay of the ruling, which the
Superior Court denied.
10 The January 18, 2007 order stated in pertinent part: “[the budget bill] that amended the [refusal
statute] * * * that was passed by the Legislature and signed into law by the Governor on June 30,
2006, repealed by implication [the refusal bill],” that “[the budget bill] * * * is the controlling
statute,” and that “the Plaintiff’s Motion for Summary Judgment is granted in favor of Theodore
H. Such, Jr.[,] Eric Ahlborg and Robert MacDonald.”
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II
Standard of Review
The Uniform Declaratory Judgments Act, G.L. 1956 chapter 30 of title 9, governs the
issuance and review of declaratory judgments by Rhode Island courts. 	“In that statute, the
Legislature determined that ‘[a]ll orders, judgments, and decrees under this chapter may be
reviewed as other orders, judgments, and decrees.’” Casco Indemnity Co. v. O’Connor, 755 A.2d
779, 781-82 (R.I. 2000) (quoting § 9-30-7). 	When presented with questions of statutory
interpretation, as we are in this case, this Court engages in a de novo review. State v. LaRoche,
925 A.2d 885, 887 (R.I. 2007). 	Further, “[t]his Court reviews the granting of a motion for
summary judgment on a de novo basis.” Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 638
(R.I. 2005); see also Travelers Property and Casualty Corp. v. Old Republic Insurance Co., 847
A.2d 303, 307 (R.I. 2004) (“In reviewing the parties’ cross-motions for summary judgment, we
examine the matter de novo.”).
III
Discussion
When 	construing 	statutes, 	this 	Court’s 	role 	is 	“to 	determine 	and 	effectuate 	the
Legislature’s intent and to attribute to the enactment the meaning most consistent with its
policies or obvious purposes.” Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987). 	“It is well
settled that when the language of a statute is clear and unambiguous, this Court must interpret the
statute literally and must give the words of the statute their plain and ordinary meanings.” Moore
v. Ballard, 914 A.2d 487, 490 (R.I. 2007) (quoting Accent Store Design, Inc. v. Marathon House,
Inc., 674 A.2d 1223, 1226 (R.I. 1996)). 	It is an equally well-settled principle that “statutes
relating to the same subject matter should be considered together so that they will harmonize
- 7 -

with each other and be consistent” with their general objective scope. State ex rel. Webb v.
Cianci, 591 A.2d 1193, 1203 (R.I. 1991); see also Horn v. Southern Union Co., 927 A.2d 292,
295 (R.I. 2007). Such statutes are considered to be in pari materia, which stands for the simple
proposition that “statutes on the same subject * * * are, when enacted by the same jurisdiction, to
be read in relation to each other.” Horn, 927 A.2d at 294 n.5 (quoting Reed Dickerson, The
Interpretation and Application of Statutes 233 (1975)).
This Court’s method of statutory construction involves a “practice of construing and
applying apparently inconsistent statutory provisions in such a manner so as to avoid the
inconsistency.” Kells v. Town of Lincoln, 874 A.2d 204, 212 (R.I. 2005) (quoting Montaquila v.
St. Cyr, 433 A.2d 206, 214 (R.I. 1981)). 	In such cases, “courts should attempt to construe two
statutes that are in apparent conflict so that, if at all reasonably possible, both statutes may stand
and be operative.” Shelter Harbor Fire District v. Vacca, 835 A.2d 446, 449 (R.I. 2003) (quoting
Providence Electric Co. v. Donatelli Building Co., 116 R.I. 340, 344, 356 A.2d 483, 486 (1976)).
We engage in this exercise to give effect “to the apparent object and purpose of the Legislature.”
Merciol v. New England Telephone and Telegraph Co., 110 R.I. 149, 153, 290 A.2d 907, 910
(1972). As this Court has explained, “‘repeals by implication are not favored by the law,’” and
“[o]nly when the two statutory provisions are irreconcilably repugnant will a repeal be implied
and the last-enacted statute be preferred.” McKenna v. Williams, 874 A.2d 217, 241 (R.I. 2005)
(quoting Berthiaume v. School Committee of Woonsocket, 121 R.I. 243, 248-49, 397 A.2d 889,
893 (1979)).
Another well-recognized rule of statutory construction states that if “the same legislative
session enacts two or more acts on the same subject they are presumed to have been actuated by
the same policy and intended to have effect together.” 1A Norman J. Singer, Sutherland
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Statutory 	Construction 	§ 23:18 	at 	523 	(6th 	ed. 	2002). 	“The 	rules 	of 	construction 	and
interpretation of acts in pari materia apply with singular force to enactments promulgated by the
same legislative body, and this strengthens the presumption against implied repeals.” Id.; see,
e.g., Niles v. Iowa District Court For Polk County, 683 N.W.2d 539, 541 (Iowa 2004); State ex
rel. Dix v. Board of Education, 578 P.2d 692, 694 (Kan. 1978); Kelly v. Marylanders for Sports
Sanity, Inc., 530 A.2d 245, 262 (Md. 1987); State v. Knapp, 843 S.W.2d 345, 347 (Mo. 1992);
Mimkon v. Ford, 332 A.2d 199, 203 (N.J. 1975); State v. Davis, 74 P.3d 1064, 1069 (N.M.
2003); Washington v. Commonwealth, 634 S.E.2d 310, 316 (Va. 2006); State v. Chapman, 998
P.2d 282, 290 (Wash. 2000); Courtney v. State Department of Health of West Virginia, 388
S.E.2d 491, 496 (W. Va. 1989).
Applying these principles to the case at bar, this Court concludes that the General
Assembly did not intend the budget bill to negate the statutory amendments contained in the
refusal bill; instead, the General Assembly intended for the amendatory language in both bills to
become operative in the refusal statute. To hold that the budget bill repealed the refusal bill, as
plaintiffs contend, would require this Court to determine that the pre-refusal bill language
republished in the budget bill implicitly or expressly repealed the refusal bill. 	We decline to
reach this result for several reasons.
Most importantly, the budget bill and the refusal bill were passed in the same legislative
session—indeed, one day apart by the General Assembly—and they address the same subject
matter. Both pieces of legislation relate to the refusal to submit to a chemical test. As such, this
Court presumes they were actuated by the same policy and that the General Assembly intended
them to have effect together. The budget bill added a $200 assessment to the refusal statute “to
support the department of health’s chemical testing programs * * * which shall be deposited as
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general revenues, not restricted receipts.” P.L. 2006, ch. 246, art. 10, § 1 (§ 31-27-2.1(b)(6)).
The refusal bill, by contrast, inserted several new provisions that increased penalties and fines
and added other language to assist enforcement. 	The obvious purpose of the budget bill, taken
from the meaning of the words that appear in its language, is to increase revenue for the
Department of Health, whereas the manifest purpose of the refusal bill is to add increased
penalties to deter the operation of a motor vehicle while under the influence of liquor or drugs.
Viewed in this light, the budget bill and the refusal bill are not irreconcilably repugnant and they
easily can be harmonized with each other. A reasonable construction, which gives effect to the
intent of the General Assembly, makes operative the amendatory language in both bills vis-à-vis
the refusal statute.
Secondly, although the Governor signed the refusal bill first, the General Assembly
passed the budget bill one day before it passed the refusal bill. 	The plaintiffs argue that the
budget bill expressly repealed the refusal bill. Yet, at the time the General Assembly passed the
budget bill, it had not taken final action on the refusal bill, much less had the refusal bill been
enacted into law. 	Thus, at the point in the legislative process when both the House and the
Senate passed the budget bill, said bill contained the correct language of the refusal statute as it
then existed. 	We do not believe the General Assembly, having already passed the budget bill,
was required to reconsider and amend it merely to reflect the amendments that later became
effective when the Governor signed the refusal bill, provided the two enactments can be
harmonized and both given effect. See State v. Smith, 98 P.3d 1022, 1028 (N.M. 2004).
The timing of the Governor’s signature is irrelevant under the specific set of facts before
us. As plaintiffs point out, the “Rhode Island Constitution vests legislative authority exclusively
in the General Assembly.” 	Article 5 of the Rhode Island Constitution commands that the
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“powers of the government shall be distributed into three separate and distinct departments: the
legislative, executive and judicial.” 	Further, our constitution states that the “legislative power,
under this Constitution, shall be vested in two houses, the one to be called the senate, the other
the house of representatives.” R.I. Const. art. 6, sec. 2. Clearly the legislative power includes the
power to enact, amend, and repeal statutes. 1A Sutherland Statutory Construction § 22:2 at 243
(“The power to amend statutes belongs exclusively to the legislature.”); id. § 23:3 at 439 (“The
efficacy of the legislature depends upon the possession of the power to repeal the existing law,
for without this attribute the power to enact would be a nullity * * *.”).
It is true, of course, that legislation passed by both houses “shall be presented to the
Governor,” and “[i]f the governor approve[s] it the governor shall sign it, and thereupon it shall
become operative.” R.I. Const. art. 9, sec. 14. 	If the Governor disproves of legislation, he can
veto it or take other action consistent with our constitution. Id. 	This constitutional directive,
however, does not give the Governor the power to repeal one of two bills solely based on the
chronological order he signs legislation when each bill has passed the General Assembly but
neither has received his signature. Moreover, our task in construing statutes is to give effect to
legislative intent, not gubernatorial intent. See People ex rel. Schlaeger v. Mattes, 71 N.E.2d 690,
693 (Ill. 1947) (“We believe the intention of the legislature can more nearly be ascertained from
its last expression rather than from the order in which the bills are signed or not signed by the
Governor.”). 	In this case, as we previously have discussed, the budget bill and the refusal bill
are not irreconcilably repugnant, and we thus are able to give effect to both.
We also note that the rule of lenity does not apply to the criminal penalties in the refusal
bill. 	“The policy of lenity applies to the construction of criminal statutes and requires that we
adopt the less harsh of two possible meanings when faced with an ambiguous criminal statute.”
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State v. Day, 911 A.2d 1042, 1047-48 n.6 (R.I. 2006). 	The plaintiffs rely upon In re Advisory
Opinion to the Governor, 492 A.2d 133 (R.I. 1985), in support of the contention that the rule of
lenity applies here. 	In that case, the General Assembly amended a statute but omitted several
words that were contained in the existing statute. 	Neither did the General Assembly “strike
through” the words at issue, as was required by the rules of each house. Id. This Court declined
to read the omitted words back into the statute, reasoning that “the statute in question is a penal
statute, and we are of the opinion that it cannot be enforced even if the above provisions were
omitted in violation of the House and Senate rules in effect at the time of the amendment.” Id.
The rule of lenity, however, applies only when the meaning of a criminal statute is
ambiguous. See State v. Oliveira, 882 A.2d 1097, 1110 (R.I. 2005). In other words, the rule of
lenity “is inapplicable when the legislative intent is clear.” State v. Robalewski, 418 A.2d 817,
826 (R.I. 1980). 	In the case at bar, the legislative intent of both the refusal bill and the budget
bill is quite clear. Our task, rather, is to attempt to harmonize the two enactments such that effect
may be given to both. 	Accordingly, the rule of lenity does not operate to strike the penalty
provisions in the refusal bill from the refusal statute.
Finally, this Court emphasizes that it does not rely in reaching its decision upon the
various indicia of legislative intent that the parties advanced. 	“There is no recorded legislative
history in Rhode Island from which to ascertain legislative intent.” Laird v. Chrysler Corp., 460
A.2d 425, 428 (R.I. 1993). To the extent that this Court examines the circumstances surrounding
the enactment of a statute, it engages in this exercise only when the statute is ambiguous. First
Republic Corp. of America v. Norberg, 116 R.I. 414, 418, 358 A.2d 38, 41 (1976). “When the
language of a statute expresses a clear and sensible meaning, this [C]ourt will not look beyond
it.” Id. 	This Court, however, does not look to the public statements of officials, the political
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leanings of the members that introduced the legislation, the meaning of gubernatorial signing
ceremonies, or the actions of the compiler in the Law Revision Office. 	Even the House or
Senate’s adherence or failure to follow its own internal rules carries little weight for the purposes
of statutory construction. See In re Advisory Opinion to the Governor, 492 A.2d at 133. In the
case before us, we are of the opinion that the General Assembly clearly intended to give effect to
the increased penalty provisions in the refusal bill, as well as to the $200 assessment set forth in
the budget bill.
IV
Conclusion
For the reasons stated in this opinion, we reverse the judgment of the Superior Court and
remand the papers thereto.
Justice Robinson did not participate.
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APPENDIX A

PUBLIC LAWS |
2006 --H6700 SUBSTITUTEB gaameceg’ CHAPTER
asanenteo G-)3Q.

JT COMM. LEGISLATIVE SERVIGI
STATE OF RHODE ISLAND LAW REVISION esa

LC00154/SUB B AS AMENDED

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2006

AN ACT

RELATING TO MOTOR VEHICLE OFFENSES

Introduced By: Representatives O'Neill, Ginaitt, Church, Kilmartin, and Jackson
Date Introduced: January 03, 2006

Referred To: House Judiciary

It is enacted by the General Assembly as follows:
‘SECTION 1, Section 31-27-2.1 of the General Laws in Chapter 31-27 entitled "Motor
Vehicle Offenses” is hereby.amended to read as follows:

31-27-2.1. Refusal to submit to.chemical test. — (a) Any person who operates a motor

vehicle within this state shall be deemed to have given his or her consent to chemical tests of his
or her breath, blood, and/or urine for the purpose of determining the chemical content of his or
her body fluids or breath. No more than two (2) complete tests, one for the presence of
intoxicating liquor and one for the presence of toluene or any controlled substance, as defined in
section 21-28-1.02(7), shall be administered at the direction of a law enforcement officer having
reasonable grounds to believe the person to have been driving a motor vehicle within this state
while under the influence of intoxicating liquor, toluene, or any controlled substance, as defined
in chapter 28 of title 21, or any combination of these. The director of the department of health is
empowered to make.and file with the secretary of state, regulations which prescribe the
techniques and methods of chemical analysis of the person's body fluids or breath and the
qualifications and certification of individuals authorized to administer the testing and analysis.

(b) If a person for religious or medical reasons cannot be subjected to blood tests, the
person may file an affidavit with the division of motor vehicles stating the reasons why he or she
cannot be required to take blood tests, and a notation to this effect shall be made on his or her
license, If that person is asked to submit to chemical tests as provided under this chapter, the

person shall only be required to submit to chemical tests of his or her breath or urine. When a

Be.

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person is requested to submit to blood tests, only a physician or registered nurse or a medical
technician certified under regulations promulgated by the director of the department of health
may withdraw blood for the purpose of determining the alcoholic content in it. This limitation
shall not apply to the taking of breath or urine specimens. The person tested shall be permitted to
have a physician of his or her own choosing and at his or her own expense administer chemical
tests of his or her breath, blood, and/or urine in addition to the tests administered at the direction
of a law enforcement officer. If a person having been placed under arrest refuses upon the request
of a law enforcement officer to submit to the tests, as provided in section 3 1-27-2, none shall be
given, but a judge of the traffic tribunal or district court judge, upon receipt of a report of a law
enforcement officer; that he or she had reasonable grounds to believe the arrested person had
been driving a motor vehicle within this state under the influence of intoxicating liquor, toluene,
or any controlled substance, as defined in chapter 28 of title 21, or any combination of these; that
the person had been informed of his or her rights in accordance with section 31-27-3; that the
person had been informed of the penalties incurred as a result of noncompliance with this section;
and that the person had refused to submit to the tests upon the request of a law enforcement
officer; shall promptly order that the person's operator's license or privilege to operate a motor
vehicle in this state be immediately suspended and that the person's license be surrendered within

five (5) days of notice of suspension. A traffic ttibunal judge or a district court judge pursuant to

the terms of subsection (c) of this section shall order as follows:

(1) Impose for the first violation a fine in the amount of two hundred dollars ($200) to
five hundred dollars ($500) and shall order the person to perform ten (10) to sixty (60) hours of
public community restitution. The person's driving license in this state shall be suspended for a
period of three-@}-months-te six (6) months to one year, The traffic tribunal judge shall require
attendance at a special course on driving while intoxicated or under the influence of a controlled

substance and/or alcohol or drug treatment for the individual.

(2) tmpese—for Every person convicted for a second violation within a five (5) year
period shall be guilty of a misdemeanor, shall be iraprisoned for not more than six (6) months and

shall pay a fine in the amount of three-hundred—dellars($300)-te-five six hundred dollars
£$506}($600) to one thousand dollars ($1,000), order the person to perform sixty (60) to one

hundred (100) hours of public community restitution, and the person's driving license in this state

shall be suspended for a period of one year to two (2) years. The traffietribunal judge shall

require alcohol and/or drug treatment for the individual.

(3) dmpeose-for Every person convicted for a third or subsequent violation within a five
(5) year period fine of four-hundred-deHars-($400}40 shall be guilty of a misdemeanor and shall

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be imprisoned for not more than one year, fined five eight hundred dollars €$500}($800) to one

thousand dollars ($1,000), order the person to perform not less than one hundred (100) hours of

public community restitution, and the person's operator's license in this state shall be suspended

for a period of two (2) years to three five 3}(5) years. The teeSGenteiberel judge shall require
alcohol or drug treatment for the individual. Provided, that prior to the reinstatement of a license

to a person charged with a third or subsequent violation within a three (3) year period, a hearing

shall be held before a ta ibunal judge. At the hearing the tsrffe-teitenel judge shall review

vo:

the person's driving record, his or ne ea oyment history, family background, and any other
pertinent factors that would indicate that the person has demonstrated behavior which warrants
the reinstatement of his or her license.

(4) For purposes of determining the period of license suspension, a prior violation shall

constitute any charge brought and sustained under the provisions of this section or section 31-27-

2,

(5) In addition to any other fines, a highway safety assessment.of five hundred dollars
($500) shall be paid by any person found in violation of this section, the assessment to be
deposited into the general fund. The assessment provided for by this subsection shall be collected
from a violator before any other fines authorized by this section.

(6) No fines, suspensions, assessments, alcohol or drug treatment programs, course on
driving while intoxicated or under the influence of a controlled substance, or public community
restitution provided for under this section, can be suspended.

(c) Upon suspending or refusing to issue a license or permit as provided in subsection (a)
of this section, the traffic tribunal or district court shall immediately notify the person involved in
writing, and upon his or her request, within fifteen (15) days shall afford the person an
opportunity for a hearing as early as practical upon receipt of a request in writing. Upon a hearing
the traffic-tribunal judge may administer oaths and may issue subpoenas for the attendance of
witnesses and the production of relevant books and papers. If the traffic-tribunal judge finds after
the hearing that: (1) the law enforcement officer making the sworn report had reasonable grounds
to believe that the arrested person. had been driving a motor vehicle within this state while under
the influence of intoxicating liquor, toluene, or any controlled substance, as defined in chapter 28
of title 21, or any combination of these; (2) the person while under arrest refused to submit to the
tests upon the request of a law enforcement officer; (3) the person had been informed of his or her
rights in accordance with section 31-27-3; and (4) the person had been informed of the penalties
incurred as a result of noncompliance with this section; the #effic-tribunal judge shall sustain the

Violation. The traffie-tribunal judge shall then impose the penalties set forth in subsection (b) of

ly s\or
te

|

BS AMENDEL

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this section. Action by the traffie-tribunal judge must be taken within seven (7) days after the
hearing, or it shall be presumed that the traffic tribunal judge has refused to issue his or her order
of suspension.

(d) For the purposes of this section, any test of a sample of blood, breath, or urine for the
presence of alcohol which relies in whole or in part upon the principle of infrared light absorption
is considered a chemical test.

(e) If any provision of this section or the application of any provision shall for any
reason be judged invalid, the judgment shall not affect, impair, or invalidate the remainder of the
section, but shall be confined in this effect to the provisions or application directly involved in the
controversy giving rise to the judgment.

SECTION 2. Chapter 31-27 of the General Laws entitled "Motor Vehicle Offenses" is

hereby-amended by adding thereto the following section:

31-27-3.1. Annual Impaired Driving Report. -- (a) The attorney general, with the

cooperation of state and municipal police departments, with the district court, the traffic tribunal

and the department of transportation shall annually, on or before, the 30" day of April of each

charged with an offense under section 31-27-1 through section 31-27-2.8 of the general laws. The

report shall include the numbers of cases charged under each statute, as well as the disposition in

each case charged, if any.
b) In addition to the number of cases charged and their disposition, the report shall

identify the number of cases which are filed with dual charges of driving under the influence

under section 31-27-1 and refusal to submit to a chemical test under section 31-27-2, and the

disposition of each of these dual charges.

(c) The report shall also identify, in any alcohol or drug related fatality charged under

section 31-27-1 through 31-27-8 of the general laws, whether the driver of the motor vehicle, a

passenger in the motor vehicle or a pedestrian was identified by law enforcement, the medical

examiner or any other entity as being under the influence of alcohol or drugs in the fatal accident.

(d) The attorney general shall promulgate any rule or regulation necessary to implement

the provisions of this section.

SECTION 3. This act shall take effect upon passage.

IN SENATE JUNE 23, 2006 THE COMMITTEE ON JUDICIARY RECOMMENDS passage of 06-8 6700 Substitute B and indefinite post pre ment of the bill marked Substitute A
AMENDES
POUR THE COMMITTE
IN THE HOUSE OF REPRESENTATIVES TRANSMITTED TO THE GOVERNOR
JUN 2 4 2006
"Recording Clerk
IN THE SENATE Order to be placed upon the CALENDAR
JUN 2 3 2006
Loading Clerk
IN THE SENATE READ AND PASSED AS AMENDED
JUN 2 3 2006
Reading Clerk
IN THE HOUSE OF REPRESENTATIVES READ & PASSED INCONCURRENCE JUN 24; 2006 Français Cercale Clerk
EXECUTIVE DEPARTMENT,
Received JUN 2 4 2006
APPROVED
JUN 2 8 2006 GOVERNOR
Presented by
LC00154/SUB B
LAW REVISION OFFICE
JFCOMM. LEGISLATIVE SERVICES
06-232
CHAPTER
PUBLIC LAWS
RELATING TO MOTOR VEHICLE OFFENSES
-
AN ACT
-
AS AMENDED
SUBSTITUTE B
2006 -- H 6700
WS AMENDED

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APPENDIX B

art.010/2

ARTICLE 10

RELATING TO SUBMIT TO CHEMICAL TEST

SECTION 1. Section 31-27-2 of the General Laws in Chapter 31-27 entitled “Motor and

Other vehicles” is hereby amended to read as follows:

\
31-27-2.1. Refusal to submit to chemical test, — (a) Any person who operates a motor

vehicle within this state shall be deemed to have given his or her consent to chemical tests of his
or her breath, blood, and/or urine for the purpose of determining the chemical content of his or
her body fluids or breath. No more than two (2) complete tests, one for the presence of
intoxicating liquor and one for the presence of toluene or any controlled substance, as defined in
§ 21-28-1.02(7), shall be administered at the direction of a law enforcement officer having
reasonable grounds to believe the person to have been driving a motor vehicle within this state
while under the influence of intoxicating liquor, toluene, or any controlled substance, as defined
in chapter 28 of title 21, or any combination of these. The director of the department of health is
empowered to make and file with the secretary of state, regulations which prescribe the
techniques and methods of chemical analysis of the person's body fluids or breath and the
qualifications and certification of individuals authorized to administer the testing and analysis.

(b) If a person for religious or medical reasons cannot be subjected to blood tests, the
person may file an affidavit with the division of motor vehicles stating the reasons why he or she
cannot be required to take blood tests, and a notation to this effect shall be made on his or her
license. If that person is asked to submit to chemical tests as provided under this chapter, the
person shall only be required to submit to chemical tests of his or her breath or urine. When a
person is requested to submit to blood tests, only a physician or registered nurse or a medical
technician certified under regulations promulgated by the director of the department of health
may withdraw blood for the purpose of determining the alcoholic content in it. This limitation
shall not apply to the taking of breath or urine specimens. The person tested shall be permitted to
have a physician of his or her own choosing and at his or her own expense administer chemical
tests of his or her breath, blood, and/or urine in addition to the tests administered at the direction
of a law enforcement officer. If a person having been placed under arrest refuses upon the request
of a law enforcement officer to submit to the tests, as provided in § 31-27-2, none shall be given,

but a judge of the traffic tribunal, upon receipt of a report of a law enforcement officer: that he or

Artlo
Relating To Submit to Chemical Test
(Page -1-)

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she had reasonable grounds to: believe the arrested: person had been driving a motor vehicle within
this state under the influence of intoxicating liquor, toluene, or any controlled’ substance, as
defined in chapter 28 of title 21, or any combination of these; that the person‘had been informed
of his or her rights in accordance with § 31-27-3; that the person had been informed of the
penalties incurred. as.a result-of noncompliance with this section; and that the person had refused
to submit to the tests upon the-request of a law enforcement officer; shall promptly order that the
person's operator's license or.privilege to operate a motor vehicle in this state be immediately
suspended and that the person's license be surrendered within five (5) days of notice of
suspension. A traffic-tribunal judge ‘pursuant to the terms of subsection (c) of this section shall
order. as follows:

(1) Impose for the first violation a fine in the amount of two hundred dollars ($200) to
five hundred dollars ($500) and: shall order the person to perform ‘ten (10) to sixty (60) hours of

public community restitution. The person's driving license in this state shall be suspended for a

. period of three (3) months to-six (6) months. The traffic tribunal judge shall require attendance at

a special course on driving while intoxicated or under the influence of a controlled substance
and/or alcohol or drug treatment for the individual.

(2) Impose for a second violation within a five (5) year. period a fine in the amount of
three hundred dollars ($300) to five hundred: dollars ($500), and the person's driving license in
this state shall be suspended for a.period of one year to two (2) years, The traffic tribunal judge
shall require alcohol and/or drug treatment for the individual.

(3) Impose for a third-or subsequent violation within a five (5) year period a fine of four
hundred dollars ($400) to five hundred dollars ($500), and the person's operator's license in this
state shall be suspended for a period of two (2) years to three (3) years. The traffic tribunal judge
shall require alcohol or drug treatment for the individual. Provided, that prior to the reinstatement
of a license to a person charged with a third or subsequent violation within a three (3) year period,
a hearing shall be held before a traffic tribunal judge. At the hearing the traffic tribunal judge
shall review the person's. driving record, his or her employment history, family: background, and
any other pertinent factors that would indicate that the person has demonstrated behavior which
warrants the reinstatement of his or her license.

(4) For purposes of determining the period of license suspension, a prior violation shall
constitute any charge brought and sustained under the provisions of this section or § 31-27-2.

(5) In addition to any other fines, a highway safety assessment of five hundred dollars
($500) shall be paid by any person found in violation of this section, the assessment to be
deposited into the general fund. The assessment provided for by this subsection shall be collected

Artld

Relating To Submit to Chemical Test
(Page -2-)

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restitution-provided for under this section

from:a violator before any other fines authorized by this section.

46) (D:No’finés, suspensions, assessments, alcohol or drug treatment programs, course on
driving while intoxicated.or:under the influence of a controlled-substance, er public community

abe suspended.

(c) Upon suspending orreftising to issue-a license or permit as provided:in subsection’ (a)

of this section, the traffic tribunal’ shall immiediately. notify the: person involved in, writing, and

upon. his.or ‘her request, Within-fifteen: (15) days shall afford theperson anopportunity for a

hearing-as' early as practical’upon: resell ofa request in writing. Upon athearing:the ‘traffic.

tribunal judge. may administer oaths a may: issue'subpoenas forthe attendance of witnesses:and
the production. of relevant books and papers. If the, traffic tribunat ‘dee finds after the hearing
that:.(1) the law enforcemeiit éfficer male ‘the sworn report had reasonable grounds to believe
that the arrested person had been driving a rotor vehicle-within this state while under the
influence of intoxicating, Hiquor, toler, orany controlled substance,’as defined'in chapter 28 of.
title 21, or any combination of eds (2) the person-while under arrest refused to submit to the
tests upon the request of i law ecffeiemeititiieer; (3) the person had‘been’informed:of his or her
rights in accordance. with § 31-27-3:and.(4)the person “had been informed. of the penalties
incurred as a result of nosiesmmpliands with this séetion; the traffic tribunal judge shall sustain the
violation. The traffic tribund, judge sfiallethen impose'the penalties set forth in subsection (b) of
this section. Action by the traffic tribunal judge must be taken within seven (7) days after the
hearing, or it shall be presumed that the'traffic tribunal judge ‘has refused to-issue his-or her order
of suspension.

(d) For the purposes of this section, any tést of a sample:of blood, breath, or urine for the
presence of alcohol'which relies in whole or in part upon the principle of infrared light absorption
is considered a chemical test.

(e) If any provision‘of this section or the application of any provision shall for any reason
be judged invalid, the judgment shall not affect, impair, or invalidate the remainder of the section,
but shall be confined in-this effectto the provisions or application directly involved in the
controversy giving rise tothe judgment.

SECTION 2. This article shall-take effect on July 1, 2006.

Artl0
Relating To Submit to Chemical Test
“(Page -3-)

IN HOUSE OF REPRESENTATIVES JUN. 1.3.2006 THE COMMITTEE ON FINANCE RECOMMEND THE PASSAGE ..... OF THE BILL MARKED SUBSTITUTE 'A' AND THE INDEFINITE POSTPONEMENT OF THE ORIGINAL BILL
FOR THE COMMITTEE -
IN THE SENATE: June 23,2006 THE COMMITTEE ON FINANCE RECOMMENDS THE PASSAGE IN CONCURRENCE OF H 7120
Substitute A
AS Amended
FOR THE COMMITTEE
IN THE HOUSE OF REPRESENTATIVES RECEIVED AND ORDERED TO BE PLACED UPON THE
JUN 1 3 2006 Fri CALENDAR.
Clerk
IN THE HOUSE OF REPRESENTATIVES READ & PASSED ASAMENDED JUN 1 9 2006
IN THE SENATE AND PASSED AS AMENDED IN CONCURRENCE
JUN 2 3 2006
Frami PimCabe Clerk
IN THE SENATE Referred to the Committee on FINANCE
READ AND PASSED IN CONCURRENCE TRANSMITTED TO THE GOVERNOR
JUN 2 1 2006
JUN 29 2006
Loading Clerk
Byl T. Hoy A CLERK OF THE SENATE
/
----
-------
Presented by
LC02076/SUB A
1
LAW REVISION OFFICE
JT COMM. LEGISLATIVE SERVICES
06- 246
CHAPTER
PUBLIC LAWVS
1
Received
JUN 2 3 2006
JUN 3 0 2006 APPROVED
GOVERNOR
ENDING JUNE, 30, 2007
MAKING APPROPRIATIONS FOR THE SUPPORT OF THE STATE FOR THE FISCAL YEAR
SUBSTITUTE A
2006 -- H 7120
AN ACT
Reading Clerk
EXECUTIVE DEPARTMENT, JUN 2 9 2006
IN THE SENATE Order to be placed upon the CALENDAR