Breathalyzer Refusal

Breathalyzer Issue has Political Hangover

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