Scalisi was involved in a two vehicle accident July 20, 2007 where no one was injured. The investigating officer detected alcohol and thought Scalisi was slurring his words, and initiated three field sobriety tests. According to guidelines, before an officer can administer such tests, a determination must be made as to whether the subject has any medical conditions that might impact the results. The evidence entered into trial in Judge Thunberg’s court clearly indicated that the officer did not perform this required task. The judge also found that the arresting officer broke from protocol in several other ways, including establishing that the defendant had mentioned suffering from a sciatic nerve condition while that information was omitted from the initial DUI arrest report.

In her ruling, Judge Thunberg said, “The conclusions of the officer based upon the unsound (test) results can not constitute …a finding of guilt.”

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Then two days later a budget bill was passed that included an amendment calling for a $200 assessment for each driving under the influence offense. The second bill however included language referring to the old, shorter driver’s license suspension.

The ensuing conflict has brought into question the admissibility of dozens of drunk driving cases where the motorist refused to take a breath test. The Rhode Island Supreme Court has agreed to hear the case and its ruling could affect drinking and driving cases dating back to 2006 when the laws were enacted.

The state Attorney General’s Office has said that the second bill only references the old penalties for context and has instructed law enforcement agencies to enforce both laws. Rhode Island DUI defense attorneys argue that DUI suspects are being given incorrect and misleading information before they decide whether or not to submit to a breath test.

At first many judges agreed to the defense position, though a three-judge appeal panel of tribunal judges ruled that the DUI cases should not be dismissed. When one case was appealed to Rhode Island Superior Court the judge ruled that the second law effectively repealed the first signed just two days earlier. This set up the case to be presented to the Supreme Court in the next few months.

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The nation's smallest state was rated "poor" based on a ranking that judged states based on their adoption of certain model laws, including penalties for refusing to take a blood-alcohol test and allowing roadside sobriety checks. Rhode Island was faulted for failing to pass either of those laws, which the Institute contends have been proven to reduce drunk driving.

See Report:
http://www.hwysafety.org/safety%5Ffacts/state%5Flaws/measure%5Fup.htm

The president of the state chapter of Mothers Against Drunk Driving called Rhode Island's DWI laws "an embarrassment," and blamed the state legislature for failing to take stronger action. Bernard Frezza, legislative liaison for the state Department of Transportation, said, "There's definitely room for improvement. We've tried to move in the same direction" as the insurance institute recommends.

Rhode Island had the nation's highest proportion of alcohol-related fatalities in 2003, as well as in 2002 and 2001.

Governor Donald L. Carcieri last week signed legislation that increases the penalties for those who refuse to submit to a Breathalyzer test when they are stopped for suspicion of driving under the influence of alcohol.

Although the DUI legislation includes driving under the influence of both alcohol and drugs, the Breathalyzer can only test for the consumption of alcohol.

The new law proposed last November by the governor and state Attorney General Patrick Lynch, increases penalties for Breathalyzer refusal. Carcieri said that the new law eliminated a major loophole in the state's drunk driving laws. The law went into effect July 5, as soon as the governor signed the bill.

"Last November, Attorney General Lynch and I announced that we were jointly submitting legislation that would help put an end to Rhode Island's shameful distinction as leading the nation in the percentage of DUI-refusal cases and the percentage of total highway deaths caused by drunken drivers," Carcieri said.

"The General Assembly heard our message and did the right thing in passing legislation that gets tough on those who refuse Breathalyzer tests," he added.

"For too long, we have allowed dangerous drivers to escape more serious penalties when they refuse to submit to Breathalyzer tests. They will no longer be able to exploit the system," the governor continued. "If you refuse a Breathalyzer test, you will face the consequences. In Rhode Island, we have zero tolerance for drunk drivers," he said.

Carcieri was joined at the billsigning ceremony by Attorney General Lynch, the sponsors of the legislation, state Senator Joseph Polisena of Johnston and Representative J. Patrick O'Neill of Pawtucket, and advocates for tougher drunk driving laws, including Mothers Against Drunk Driving.

Before the new law took effect, the penalties for refusing a Breathalyzer test were significantly less than the penalties for DUI. Under the new law, the penalties for DUI refusal increase significantly.

First-time offenders will now have their driver's license suspended for six months to one year for Breathalyzer refusal. Under the old law, a driver's license was suspended from three months to six months. The fines, community service requirements, and mandatory participation in a drunken-driving course remain unchanged.

For second offenses committed within a five-year period, offenders will be charged with a misdemeanor, face a sentence of up to six months in prison, and have their driver's license suspended for one to two years. They must also pay a fine of $600 to $1,000, and perform 60 to 100 hours of community service. Under the old law, the offense was considered a violation. A prison sentence was not imposed, the fine was $300 to $500, and community service was not required. The suspension of a driver's license for one to two years and the requirements of alcohol and/or drug treatment remain unchanged.

For third-time offenders within a five-year period, suspects are charged with a misdemeanor, face a sentence of up to one year in prison, and have their driver's licenses suspended for two to five years. They must pay an $800 to $1,000 fine and perform a minimum of 100 hours of community service. Under the old law, the offense was considered a violation and not a misdemeanor, which eliminated a prison sentence. The fine was $400 to $500, and community service was not imposed. The requirements for alcohol and/or drug treatment remain unchanged.

"It ups the anti," said Sgt. Jack Dube, a 26-year veteran of the Jamestown Police Department. "There's a big difference between losing a license for three to six months, and losing it for a year for a first offense," he said.

"It'll make people think twice before they get behind the wheel after having a few," he added. "I definitely think it's a good

thing," said Police Lt. William Donovan. "Refusing to take the test used to mean no criminal offense on record for second and third offenders. Now, refusal is a misdemeanor, and the penalties are much stiffer. It's no longer a civil matter. DUI is a serious offense, and should be treated as such. The law moves us in the direction of the rest of the country."

Source: http://www.jamestownpress.com/

Westerly, RI-In the state of Rhode Island, drivers refuse to take Breathalyzer tests more than in any other state in the country. While the national average is around 25%, Rhode Island's statistic is at 85% according to a report from the National Highway Traffic Safety Administration (NHTSA).

A clear explanation for Rhode Island's history with this ranking comes from the state's laws: refusing the Breathalyzer test does not lead to a criminal offense or time in prison. Instead DUI offenders lose their licenses and pay heavy fines because the refusal is treated as a lighter violation of the law.

In Rhode Island, a person is double-charged when refusing the Breathalyzer because they receive charges for both the DUI and the test refusal. Police officers then use visual signs of intoxication to convict a person of DWI. However judges often dismiss at least one of the two charges when officer observation is the only evidence.

Several county police chiefs concur that the consequences of Breathalyzer test refusal need to carry more weight. Under the current state laws, the first three offenses bring fines of $200-500 and a suspended license, with the penalties increasing for each offense after the first. The first offense includes 10-60 hours of community service, and the second includes an alcohol treatment program.

The first-time DWI brings very similar penalties as the first offense for refusal of a Breathalyzer test, however the second offense carries a much heavier fine-maximum $1,000-and 10 days in jail. The third offense brings a maximum fine of $5,000 plus one year in jail.

While police officers may suggest that stricter penalties for test refusal could solve the problem, Michael Cozzolino, a local defense attorney, believes that stricter penalties promote people to incriminate themselves. Cozzolino tells his clients to avoid taking the Breathalyzer test.

Cozzolino thinks that the Connecticut laws seem to create smoother results. In Connecticut, which borders Rhode Island, the DUI laws make taking the Breathalyzer test more appealing than refusing it. First-time offenders can be freed of their DWI charge if they attend a special pretrial education program. An offender is not given the option of the educational workshop if they have been charged with refusing the test.

While the National Highway Traffic Safety Administration (NHTSA) offers advice regarding lowering the rate of refusal, some is obvious (make penalties more severe) and some is equivocal (interviewing bartenders). By comparing and contrasting the results in different states, Rhode Island police chiefs and citizens hope to lower the state's continual issue with Breathalyzer test refusal.

August, 2005

Related Links:

• Rhode Island DWI Laws
• Rhode Island DWI Attorneys
• Rhode Island Auto Insurance

Jim Baron, Journal Register News Service 10/03/2006

PROVIDENCE - A paperwork snafu that caused the Traffic Tribunal to dismiss several breathalyzer refusal cases has escalated into a war of words between Speaker William Murphy (D- Dist. 26, West Warwick, Coventry, Warwick) and Rep. Robert Flaherty (D-Dist. 23, Warwick), a possible leadership challenger.

About 10 cases where suspected drunk drivers refused a breathalyzer test, including at least one that was a client of Flaherty, who is a lawyer in private practice, were dismissed after it was learned some police departments allegedly gave them the wrong information about the consequences of declining the test.

The General Assembly passed a bill significantly toughening the penalties for refusing a chemical test last June in the closing days of its 2006 session. As part of the 2007 budget, it also added a provision for a $200 assessment for each offense to go to the Department of Health.

The Attorney General's office, in anticipation of the toughened penalties being signed into law, drafted a form for police officers to use when dealing with breathalyzer test refusers that detailed the penalties for not taking the test, according to Assistant Attorney General Jay Sullivan. When the budget passed a short time later with the $200 assessment, the Attorney General's office distributed yet another new form to police departments.

But some departments apparently did not get that last update, because they gave some suspects the form that did not contain information about the $200 assessment.

Because those people were not fully warned of the penalties for refusing, their cases were dismissed. Those dismissals, according to District Court Chief Judge Albert DiRobbio, are currently being appealed to a panel of three Traffic Tribunal judges. That could be followed by further appeals to the District Court and, ultimately, the state Supreme Court.

Legislative attempts to toughen penalties for breathalyzer refusal were defeated in the General Assembly for several years running. When groups such as Mothers Against Drunk Driving began to protest vocally, Murphy blamed the death of the bill year after year on Flaherty, who was chairman of the Judiciary Committee where the bills were heard. Flaherty pointed the finger back at Murphy, saying it is the speaker, not committee chairman, who determines whether bills live or die.

Before the start of the session, Flaherty, who made it clear he would participate in, or perhaps even lead, an attempt to topple Murphy as speaker, was replaced as chairman by Rep. Donald Lally, on Murphy's orders.

Murphy then became vocal about moving the breathalyzer bill out of committee. In a letter to Murphy dated Sept. 28, Flaherty said, "when you were a member of Judiciary, you did not support this increase of penalties for refusal and ... your recent support of the legislation was generated by media criticism of you. Your new-found religion has a practical origin."

Flaherty asserts because the 2007 budget, which lists the old penalties for breathalyzer refusal, was signed after the bill sponsored by Pawtucket Rep. J. Patrick O'Neill, which toughened the sanctions, it effectively repeals the O'Neill law.

"In other words," Flaherty wrote to Murphy, "you wiped out your own reform." That is not the case, Murphy and House staffers say.

House legal counsel William Guglietta said the General Assembly works under a system of "statutory construction," whereby the Law Revision Office can reconcile two separate bills on the same subject "and if they are not in conflict, they can draw legislative intent" from the wording of the bills and synthesize them.

Murphy told Flaherty in a Sept. 26 letter that, "as a lawyer and legislator for 16 years, one would suppose that you would understand the manner in which bills are enacted ... It is a well-founded principle that two statutes, when not in conflict, can be read and enforced together. It is obvious that you wish to engage in political grandstanding as opposed to dealing with the facts of this matter."

Source: http://www.zwire.com