Legislative two-step on DUI laws

An effort to toughen a drunk-driving law two years ago has created a legal snafu that could affect the future of dozens of Breathalyzer-refusal cases, an issue that is expected to be addressed by the R.I. Supreme Court in the coming months.
Depending on the ruling from the state’s highest court, the decision could lead to the dismissal of some cases dating back to 2006 in which suspected drunken drivers refused to submit to the chemical test.
The decision is much anticipated among some defense lawyers because it might have an effect on countless other driving-under-the-influence (DUI) cases, too.
At the heart of the issue is the interpretation of two conflicting bills passed by the R.I. General Assembly and signed into law by Gov. Donald L. Carcieri in the waning days of the 2006 legislative session.
One amendment doubled the amount of time a driver’s license could be suspended if a drunken-driving suspect refused to take a breath test – and added criminal charges for multiple offenses.
The other amendment, signed two days later as part of the budget bill, added a provision for a $200 assessment for each offense that would go to the R.I. Department of Health. But, in what might have been an oversight, the text of what was signed into law contained the old, less-severe penalties of a three- to six-month license suspension for refusing to take the test, not the six-months-to-a-year penalty that had become law a few days earlier.
The question: Is the first amendment in effect, or the second one? Or can it be a combination of the two?
The R.I. Attorney General’s Office has said there should be no question at all. The amendment to add the $200 assessment only made reference to the old penalties because that was what was on the books when it was drafted, according to Neil F.X. Kelly, the assistant attorney general who is overseeing the case before the Supreme Court. The reference to the penalties was only intended to provide “context,” Kelly said last week.
“They were adding the assessment,” he said. “It wasn’t like [the General Assembly] was going back to rework the other sections. There’s no outward indication they wanted to repeal the legislation they had already passed.”
In fact, Kelly said, the reconciling of two separate bills on the same subject happens frequently in the legislative process.
Police departments statewide, following a rights form distributed by the office of the attorney general, have assumed a combination of the two amendments. When drunken-driving suspects are read their rights at a police station, they are told of the more stringent penalties for refusing to take a breath test, including the $200 assessment.
Still, some defense attorneys argued that their clients were being incorrectly warned before deciding whether to take a Breathalyzer. The second amendment to the law, with its lesser penalties, is the one that should be in effect, those attorneys argue.
“Our clients were being misinformed,” said Robert Humphrey, a Tiverton lawyer who handles numerous DUI cases. “It’s creating a lot of confusion.”
At first, some judges were in agreement.
When lawyer John Harwood raised the issue and requested that a case be dismissed in 2006 at the R.I. Traffic Tribunal – where these types of cases are initially heard – Judge William Noonan agreed.
Other tribunal judges, however, refused to dismiss similar cases on the same grounds, and eventually the tribunal’s three-judge appeal panel ruled that none of these cases would be dismissed.
“Judges were taking different points of view, but now it’s done on a uniform basis,” Judge Edward Parker, interim chief magistrate at the R.I. Traffic Tribunal, explained last week. “We’re now working on the premise that it’s the first one that passed – that’s the valid one.”
“We’re interpreting the law the way I thought it should be interpreted,” Parker continued. “Using common sense.”
Before 2006, there had been numerous legislative attempts to toughen the penalties for breath-test refusals. Groups such as Mothers Against Drunk Driving saw the lesser punishments as a “loophole” used by DUI drivers to get out of criminal charges.
Didn’t state legislators intend in 2006 to stiffen the punishment for refusal?
Maybe, said Harwood, but he added that no one can interpret the intent of legislators who approved these bills. “Who am I to question what they do?” said Harwood, a former state representative and House speaker who was out of office when the amendments were passed. “I’m not going to speculate.”
When Harwood appealed to the R.I. Superior Court on behalf of his client, Theodore Such, Judge Stephen Fortunato ruled in Such’s favor. Fortunato’s order, which came in January 2007, said the second amendment signed into law on June 30, 2006, effectively repealed the amendment signed just two days earlier that had increased the punishment.
The attorney general’s office appealed Fortunato’s ruling to the state Supreme Court. Although no hearing has yet been scheduled in the case, both sides are already filing briefs.
Meanwhile, there’s no shortage of cases that could be affected by the Supreme Court’s decision. In 2007 alone, 2,470 cases came before the Traffic Tribunal, according to Judge Parker.
“If it goes against us, I’m sure we’ll have a rash of people trying to vacate what’s been done,” Parker said. “How many people will be affected, I can’t tell you. But we’ll take that up when it comes.” •

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