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

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

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

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.”


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