Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Andrea Lynn Hoch, Chief Assistant Attorney General, Taylor S. Carey, Acting Chief Assistant Attorney, General, Jacob A. Applesmith, Assistant Attorney General, Miguel A. Neri, Fiel D. Tigno and Raymond W. Hamilton III, Deputy Attorneys General, for Defendant and Appellant.
Law Office of John Halley and John A.W. Halley, Redwood City, for Plaintiff and Respondent.
GEORGE, C.J.
When a law enforcement officer finds an apparently intoxicated person in a vehicle parked on the side of a road under circumstances that provide the officer reasonable cause to believe that the person had been driving while under the influence of alcohol or a drug, and the person fails to submit to chemical sobriety testing as requested by the officer, may the Department of Motor Vehicles (DMV) suspend the person’s driver’s license based upon the circumstance that the officer had reasonable cause to believe the person had been driving while under the influence, or is suspension of a driver’s license permissible in this setting only if the DMV finds that the person actually had been driving the vehicle immediately prior to the officer’s request?
This question requires us to consider two statutes in the Vehicle Code—section 23612, the “implied consent” law (deeming motorists who have been lawfully arrested for driving while under the influence to have consented to chemical testing) and section 13353, setting forth the consequences (including suspension or revocation of a driver’s license) of a motorist’s refusal to submit to chemical testing.1
The issue presented by this case has divided our Courts of Appeal for several years. Three decisions have concluded that proof of actual driving immediately prior to the suspect’s arrest for a driving-while-under-the-influence offense is required before a driver’s license may be suspended or revoked for refusing to submit to chemical testing. (Weber v. Orr (1969),274 Cal.App.2d 288, 79 Cal.Rptr. 297 (Weber); Medina v. Department of Motor Vehicles (1987),188 Cal.App.3d 744, 233 Cal.Rptr. 557 (Medina); Jackson v. Pierce (1990),224 Cal.App.3d 964, 274 Cal. Rptr. 212 (Jackson).) Two decisions have disagreed, concluding that proof of actual driving immediately prior to a suspect’s arrest is not required for license suspension or revocation under these circumstances. (Rice v. Pierce (1988),203 Cal. App.3d 1460, 250 Cal.Rptr. 832 (Rice); Machado v. Department of Motor Vehicles (1992),10 Cal.App.4th 1687, 13 Cal.Rptr.2d 457 (Machado); see also 2 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 228, pp. 774-775 [discussing the split in the case law].)2
We conclude, consistent with the latter two decisions, Rice, supra, 203 Cal.App.3d 1460, 250 Cal.Rptr. 832, and Machado, supra, 10 Cal.App.4th 1687, 13 Cal.Rptr.2d 457, and with the Court of Appeal’s opinion in the present case, that consent to testing pursuant to section 23612 applies broadly and generally to “those who drive”—that
[57 Cal.Rptr.3d 308]
is, to those who take advantage of the public streets, roads, and highways to operate motor vehicles in this state—but that this statute does not require proof of actual driving immediately prior to lawful arrest for driving while under the influence of alcohol or a drug. We further conclude that revocation or suspension of a license under section 13353 and related statutes for refusal to submit to chemical testing under the implied consent law—a consequence conditioned upon only four requirements, including that the arresting officer had reasonable cause to believe the person had been driving a motor vehicle while under the influence, but not including a finding of actual driving—similarly does not require proof that the person actually was driving immediately prior to the arrest.
I
The relevant evidence, derived from the administrative hearing conducted by the DMV, is summarized as follows.
In early January 2003, at approximately 10:45 p.m., Belmont Police Officer Richard Wheaton observed plaintiff Terry Troppman “parked on the side of the road passed out behind the wheel.” Wheaton approached the vehicle and attempted to contact Troppman. After knocking upon the driver’s side window and receiving no response, Wheaton pounded the window with his fist. Troppman raised her head and peered out the front windshield, mumbling incoherently.
Wheaton opened the driver’s door and encountered a strong odor of alcohol. When he inquired as to Troppman’s condition, she repeatedly replied, “Yeah, ok.” Asked to produce her driver’s license and relate her date of birth, she was unable to do so. In response to the officer’s inquiry concerning how much she had had to drink, Troppman replied, “A little bit.” Asked how much was a little bit, Troppman reiterated, “A little bit.”
Wheaton thereafter asked Troppman to exit from the vehicle and move toward the sidewalk. As Troppman complied, she used the vehicle door to maintain her balance. At the curb, Wheaton continued to detect a strong alcoholic aroma emanating from Troppman. He observed that her eyes were bloodshot, red, and watery; her speech was slurred; and her physical movements were extremely slow. Wheaton thereafter administered a series of field sobriety tests, which Troppman failed.
Belmont Police Officer Lewis arrived at the scene to assist Officer Wheaton. After obtaining Troppman’s permission to search for her driver’s license inside the vehicle, Lewis found a half-empty 1.5 liter bottle of wine tucked inside a plastic bag on the floor next to the driver’s seat. Lewis asked Troppman whether she had consumed the wine, and she replied, “Yes,” adding that she was an alcoholic. Wheaton then asked Troppman whether “she was driving the vehicle,” and Troppman “told me she was.”
Wheaton thereafter placed Troppman under arrest for violating section 23152, subdivision (a) (driving while under the influence of alcohol or a drug), and section 23222, subdivision (a) (possessing an open container of an alcoholic beverage while driving). Wheaton explained the required chemical testing alternatives, to which Troppman replied that she preferred to take a breath test. Wheaton thereafter transported her to a facility for chemical testing.
At the facility, Troppman failed to complete a breath test and refused to continue. Wheaton thereafter read to her the “Chemical Test Refusal Admonition,” but she again refused to submit to testing.
[57 Cal.Rptr.3d 309]
After briefly resisting, she was handcuffed and transported to the San Mateo County Jail, where she was booked on the Vehicle Code charges described above, and for resisting arrest (Pen.Code, § 148).3
The DMV conducted a telephonic administrative hearing in mid-February 2003, at which Troppman was represented by counsel. In accord with the requirements set forth in section 13558, subdivision (c)(1), the scope of the hearing was confined to “only … those facts listed in … [s]ection 13557[, subdivision (b)(1) ],” as follows: (1) whether the law enforcement officer “had reasonable cause to believe that the person had been driving a motor vehicle[while under the influence of alcohol or drugs]“; (2) whether “the person was placed under arrest”; (3) whether “the person refused or failed to complete the chemical test … after being requested by a peace officer”; and (4) whether “the person had been told that … her privilege to operate a motor vehicle would be suspended or revoked if … she refused to submit to, and complete, the required testing.” (Italics added; see also § 13353, subd. (d) [setting forth the same four factors].)
At the hearing, Troppman testified that she is an alcoholic and had been one for several years. She asserted she had abstained from drinking during the holiday season, but that while driving on the night of her arrest she had an “uncontrollable urge” to drink. In response to that urge, she stopped at a supermarket, purchased a 1.5 liter bottle of wine and a corkscrew, and then drove to search for a place where she could drink “safely.” After driving a few blocks, she observed a wide dirt area off the side of the road. She drove onto that area, turned off the vehicle’s ignition, and placed her car keys in the bag with the wine bottle. She thereafter consumed much of the wine, and next recalled an officer knocking on the window of her vehicle.
Troppman denied consuming any of the alcoholic beverage prior to driving her vehicle, but admitted consuming approximately one-half of the contents of the bottle while seated in the vehicle. She did not recall the details of her purchase of the wine, of parking her vehicle, or of the time that elapsed prior to noticing the officer knocking on her window.
In early April 2003 the hearing officer issued findings and a decision suspending Troppman’s driver’s license, finding: (1) the peace officer had reasonable cause to believe Troppman had been driving a motor vehicle while under the influence of alcohol or drugs (that is, in violation of sections 23140, 23152, or 23153); (2) Troppman lawfully was arrested; (3) Troppman was informed that if she refused to submit to or complete a chemical test, her driver’s license would be suspended for one year, or revoked for two or three years; and (4) Troppman refused to submit to, or failed to complete, a chemical test after being requested to do so by a peace officer.
Following the administrative proceeding and decision, the DMV suspended Troppman’s driver’s license for one year pursuant to section 13353 for failure to submit to a chemical test.
Troppman thereafter filed a petition for a writ of mandate, challenging the suspension
[57 Cal.Rptr.3d 310]
order on the basis that there was no finding that she had been driving immediately prior to the time she was arrested. The superior court granted the petition and ordered the suspension of Troppman’s license set aside, based upon the absence of proof that Troppman actually had been driving a vehicle immediately prior to the arrest while under the influence. In so ruling, the superior court simply stated: “The court finds the Jackson[, supra, 224 Cal.App.3d 964, 274 Cal.Rptr. 212] logic to be more compelling. So, the Court is going to grant the writ.”
The DMV appealed, and the Court of Appeal set aside the lower court’s order. The appellate court held that pursuant to section 13353, the license of a motorist suspected of driving while under the influence of alcohol or a drug may be suspended or revoked for refusal to submit to a chemical test, notwithstanding the absence of a finding that the person actually had been driving a motor vehicle immediately prior to his or her arrest for the alleged offense. Both the Court of Appeal’s majority opinion and the concurring opinion reasoned that if the Legislature had intended to condition the suspension of a license under section 13353 upon a finding that the licensee actually had been driving immediately prior to the arrest for the alleged offense, it would have added such an express requirement to the findings enumerated in sections 13353 and 13557.4
As noted, we granted Troppman’s petition for review in order to resolve the conflict among appellate court decisions.
II
A
Resolution of the issue presented in this case requires us to consider two statutes—section 23612, the implied consent law, and section 13353, the license suspension/revocation statute.
Section 23612, quoted in the margin,5 provides that “[a] person who drives a
[57 Cal.Rptr.3d 311]
motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for” a driving-under-the influence offense (§ 23612, subd. (a)(1)(A)), and that such testing “shall be administered at the direction of a peace officer having reasonable cause to believe” the person was driving while under the influence of alcohol or a drug. (§ 23612, subd. (a)(1)(C).) In subsequent subsections, the statute sets forth in detail the circumstances under which, pursuant to this implied consent, the arresting officer may require a chemical test, the various test choices available to the arrestee, and the procedure to be followed by the officer with respect to the arrestee’s license in the event the arrestee refuses to take or complete a required test. (Id., subds. (a)(2), (b)-(g).)
Section 13353 is a related statute that works in tandem with section 23612. Section 13353 specifies actions to be taken by the DMV in the event a person refuses an officer’s request to submit to a chemical test. Subdivision (a) of section 13353 authorizes the DMV to suspend or revoke the driver’s license of “a person [who] refuses [a law enforcement] officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle” while under the influence of alcohol or a drug. (Italics added.)6 Section 13353 also confirms the
[57 Cal.Rptr.3d 312]
process by which the arresting officer is personally to serve upon a recalcitrant arrestee a notice of suspension or revocation “pursuant to Section 23612.” (§ 13353, subd. (c).) Finally, section 13353, together with related statutes governing the scope of the administrative hearing, specifies four factual findings to be made by the DMV when a suspension or revocation action is subjected to administrative review or hearing. In order to confirm such action, the DMV must find that: (1) the law enforcement officer had “reasonable cause to believe that the person had been driving a motor vehicle in violation of [one or more specified vehicle code sections]“; (2) the person “was placed under arrest”; (3) the “person refused to submit to or did not complete the test or tests after being requested by a peace officer”; and (4) the “person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the tests or tests.” (§ 13353, subd. (d); see also § 13557, subd. (b)(1).)7 Pursuant to section 13558, subdivision (c)(1), those four factors are the “only” issues to be resolved at the administrative hearing concerning license suspension or revocation. (Italics added.)8
B
1
Troppman contends that because the implied consent law, section 23612, subdivision (a)(1)(A), states that it applies to “[a] person who drives a motor vehicle,” the statute must be understood to require actual driving immediately prior to the arrest for a driving-while-under-the-influence offense, and that absent such evidence, license suspension or revocation is not triggered under section 13353 even if the other four factors listed in subdivision (d) of that section and in related provisions (§ 13557, subd. (b)(1), quoted ante, fn. 7; see also § 13558, subd. (c)(1), quoted ante, fn. are met.
In support, Troppman relies upon three decisions, Weber, supra, 274 Cal.App.2d
[57 Cal.Rptr.3d 313]
288, 79 Cal.Rptr. 297, Jackson, supra, 224 Cal.App.3d 964, 274 Cal.Rptr. 212, and Medina, supra, 188 Cal.App.3d 744, 233 Cal.Rptr. 557. In Weber, officers observed the licensee’s car parked partially upon an access road. The licensee admitted he was intoxicated, and after being arrested for driving under the influence of alcohol, he repeatedly refused to submit to a chemical test. At the hearing before the DMV, the licensee’s privilege to operate a motor vehicle was suspended based upon his refusal to submit to a chemical test as prescribed by former section 13353, the implied consent statute in force at the time (currently, section 23612). The trial court upheld the suspension. Applying section 13353, the Court of Appeal set aside the suspension, holding: “The fact that the officer has reasonable cause to believe that a person was driving upon a highway is not sufficient if actually he was not so driving,” and absent such driving, there is no “implied[ ] consent to the test, no matter what the appearances to the officer may have been.” (Weber, supra, 274 Cal.App.2d at p. 291, 79 Cal.Rptr. 297.) The court in Medina, addressing similar circumstances, agreed with the court’s analysis in Weber, concluding that Weber’s “construction of the implied consent law seems mandatory. Consent must be implied from some act of the arrestee, not from a peace officer’s `reasonable belief that the arrestee has so acted.” (Medina, supra, 188 Cal.App.3d at p. 750, 233 Cal.Rptr. 557.)
Thereafter, the court in Jackson determined that under the plain language of the implied consent law, “it is the act of driving a motor vehicle … which activates the admonition and testing procedures.” (Jackson, supra, 224 Cal.App.3d at p. 970, 274 Cal.Rptr. 212.) The court reasoned as follows: “The Legislature has … made the officer’s reasonable suspicion enough to warrant giving the tests to every individual who may have been driving while intoxicated. By doing so, the immediate goal of the law, to preserve the best evidence of a suspect’s blood-alcohol content, is achieved. [Citation.] [¶] However, the suspension of an individual’s license is another matter. Suspension is the result of the person’s failure to do what he or she has consented to do—submit to a test. The first 19 words of [the implied consent statute, now section 23612—'A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing ....'] clearly proclaim that the consent is implied by law from the act of driving. If the person was not driving, he or she did not impliedly agree to submit to the test and, under the statute, has every right to refuse to take it. A person who has no obligation to comply with a law should not be punished for failing to comply with it.” (Jackson, supra, 224 Cal.App.3d at p. 971, 274 Cal.Rptr. 212.)
2
By contrast, the DMV asserts that although the implied consent law, section 23612, refers to “[a] person who drives a motor vehicle” as deemed to have consented to chemical testing if lawfully arrested for a driving-while-under-the-influence offense, that language does not require evidence of actual driving immediately prior to the lawful arrest for driving under the influence, and hence license suspension or revocation under section 13353 is not limited to situations in which the individual who refuses chemical testing was observed actually driving immediately prior to being lawfully arrested. The DMV argues instead that (a) section 23612 provides general notice to “those who drive” (that is, to “the motoring public”) that any person lawfully arrested for driving while under the influence of alcohol or a drug is obligated to submit to chemical testing upon threat of license suspension, and (b) section
[57 Cal.Rptr.3d 314]
13353 is a corresponding “enforcement provision that authorizes the DMV to suspend a person’s driving privileges upon proof of the [four] elements specified in the statute” (see §§ 13353, subd. (d), 13557, subd. (b)(1), and 13558, subd. (c)(1))—and that nothing more need be proved. In support, the DMV relies upon Rice, supra, 203 Cal.App.3d 1460, 250 Cal. Rptr. 832, and Machado, supra, 10 Cal. App.4th 1687, 13 Cal.Rptr.2d 457.
In Rice, supra, 203 Cal.App.3d 1460, 250 Cal.Rptr. 832, the Court of Appeal departed from the analysis set forth in the cases relied upon by Troppman. After the licensee in Rice was arrested for driving while under the influence, he refused to submit to chemical testing as required by the implied consent law. At a subsequent DMV hearing, the licensee argued he, was not required to submit to testing, because he had not been driving the vehicle. ` The DMV rejected this position and revoked his license. (Id., at pp. 1461-1462, 250 Cal.Rptr. 832.) The licensee thereafter petitioned the superior court for a writ of mandate to compel the DMV to lift the revocation. Relying upon Medina, supra, 188 Cal.App.3d 744, 233 Cal.Rptr. 557, the licensee again asserted the revocation order was invalid because the referee had not made a finding that the licensee actually had driven the car immediately prior to the arrest. (Rice, at p. 1462, 250 Cal.Rptr. 832.) The trial court granted the petition, and the DMV appealed. (Ibid.)
In reversing the trial court’s order, the court in Rice observed that the legislative purpose underlying the implied consent law (section 23612) “is two-fold: (1) to obtain the best evidence of blood alcohol content while ensuring cooperation of the person arrested, and (2) to inhibit driving under the influence.” (Rice, supra, 203 Cal.App.3d at p. 1465, 250 Cal.Rptr. 832.) The court reasoned: “It would serve no useful policy to permit an intoxicated person suspected of driving a vehicle to refuse to take a chemical test for alcoholic content. To require an additional finding [beyond the four required by the statute] that the arrestee was actually driving, would undermine the important goals of cooperation and deterrence.” (Ibid.)9 The court concluded that Medina’s interpretation of the implied consent statute gave “inadequate deference to the state’s broad police power to legislate for the common health and welfare—i.e.,’”to fulfill the need for a fair, efficient and accurate system of detection and prevention of drunken driving.” [Citation.]‘ [Citation.]” (Id., at p. 1464, 250 Cal.Rptr. 832.) In support of that view, the court in Rice observed that the implied consent law “refers to any `person’ lawfully arrested” for having violated section 23152 or 23153, and that the statute “does not speak in terms of the lawful arrest of a `driver.’ (Cf. definitions of ‘person’ in § 470 and `driver’ in § 305.) A lawful arrest for driving under the influence requires that there be reasonable cause to believe the person was driving (Noia v. Cozens (1973),34 Cal.App.3d 691, 110 Cal.Rptr. 231), not proof beyond a reasonable doubt the arrestee was in fact driving. [¶] … [¶] The statute … [provides]
[57 Cal.Rptr.3d 315]
that upon a lawful arrest for driving under the influence, a person must submit to one of the chemical tests administered at the direction of a peace officer. Upon failure to submit, the person shall suffer loss of his driving privileges. This interpretation is consistent with the very important purpose of the statute to keep persons who are reasonably suspected of operating a vehicle while intoxicated off the road and to secure the civil cooperation of all persons privileged to drive by providing objective proof of their sobriety when suspected of driving under the influence. [Citations.] Other than to cite to Medina, plaintiff makes no showing why we should disregard the plain language and engraft an additional requirement onto the statute. In light of our interpretation of the statute, we decline to follow Medina.” (Rice, supra, 203 Cal.App.3d at pp. 1465-1466, 250 Cal.Rptr. 832.)
Finally—and most recently (in 1992)—in Machado, supra, 10 Cal.App.4th 1687, 13 Cal.Rptr.2d 457, the DMV suspended a licensee’s privilege to operate a motor vehicle because he failed to submit to chemical testing following his arrest for driving while under the influence of alcohol. (Id., at p. 1689, 13 Cal.Rptr.2d 457.) At the administrative hearing held to determine the propriety of the suspension, the licensee claimed he was not the driver and therefore was not required to submit to such testing. (Ibid.) The hearing officer found that the licensee was the driver and affirmed the suspension. (Id., at p. 1691, 13 Cal.Rptr.2d 457.) The licensee thereafter sought a writ of mandate in the superior court, which concluded that the hearing officer’s finding that the licensee was the driver was not supported by substantial evidence. The court, however, upheld the suspension on the ground that the implied consent law requires only that, in order to trigger the chemical testing requirement, an officer have probable cause to arrest the licensee for committing the offense of driving while under the influence. (Id., at pp. 1691-1692, 13 Cal.Rptr.2d 457.)
In affirming the trial court’s order, the appellate court in Machado examined the conflicting interpretations of the implied consent law, as set forth in Medina and Jackson on the one hand, and Rice on the other, and concluded that “the Rice case correctly interprets the statute and legislative intent.” (Machado, supra, 10 Cal. App.4th at p. 1696, 13 Cal.Rptr.2d 457.) The court in Machado concluded that, when “[considered in its entirety," the language of both the implied consent statute (currently section 23612) and section 13353 "plainly applies to persons who are lawfully arrested for drunk driving when the arresting officer has probable cause to believe the person was driving. The introductory language of [the implied consent statute] (`Any person who drives a motor vehicle’) operates to describe the general class of persons to whom the law applies— those who drive. The language does not limit application of the laws to those who are proved to be actually driving at the time of the lawful arrest. Rather, the language of the sections specifically conditions their application on whether a peace officer has probable cause to believe a person was driving.” (Machado, at p. 1698, 13 Cal.Rptr.2d 457, italics added.)
As explained below, we agree with the DMV and with Rice, supra, 203 Cal. App.3d 1460, 250 Cal.Rptr. 832, and Machado, supra, 10 Cal.App.4th 1687, 13 Cal. Rptr.2d 457.
C
“The fundamental principle of statutory interpretation is `the ascertainment of legislative intent so that the purpose of the law may be effectuated….’” (Pollack v. Department of Motor Vehicles
[57 Cal.Rptr.3d 316]
(1985) 38 Cal.3d 367, 372, 211 Cal.Rptr. 748, 696 P.2d 141.)10
As observed above, the court in Rice identified a dual legislative purpose underlying the implied consent law, section 23612: “(1) to obtain the best evidence of blood alcohol content while ensuring cooperation of the person arrested, and (2) to inhibit driving under the influence.” (Rice, supra, 203 Cal.App.3d at p. 1465, 250 Cal.Rptr. 832.)
Similarly, this court has outlined in Mercer, supra, 53 Cal.3d 753, 280 Cal.Rptr. 745, 809 P.2d 404, the purpose of both the implied consent law, section 23612, and the related license suspension/revocation law, section 13353. We explained in Mercer that the Legislature adopted the implied consent law in 1966 in response to the United States Supreme Court’s decision in Schmerber v. California (1966),384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. Schmerber approved forcible chemical testing of persons arrested, so long as (i) the test is incident to a lawful arrest for driving under the influence of alcohol or a drug, (ii) the circumstances require prompt testing, (iii) the arresting officer has reasonable cause to believe the arrestee is intoxicated, and (iv) the test is conducted in a medically approved manner. (Id., at pp. 766-772, 86 S.Ct. 1826.) We observed in Mercer (quoting People v. Superior Court (1972),6 Cal.3d 757, 100 Cal. Rptr. 281, 493 P.2d 1145 (Hawkins)): “`Although it is clear under Schmerber that a person who has been lawfully arrested may have a blood sample forcibly removed without his consent, provided [conditions described above are met], nevertheless such an episode remains an unpleasant, undignified and undesirable one. [K] However, the shocking number of injuries and deaths on the highways caused by drunk drivers has compelled society to adopt extreme measures in response.’” (Mercer, supra, 53 Cal.3d at pp. 759-760, 280 Cal.Rptr. 745, 809 P.2d 404.) We observed in Mercer and Hawkins that by enacting the implied consent law, thereby providing an alternative method of compelling a person arrested for driving while under the influence to submit to chemical testing, the Legislature afforded officers a means of enforcement that does not involve physical compulsion. We stated: “`It is noteworthy that in so doing, the Legislature took pains to condition’” use of this alternative method of compelling chemical testing “`upon the reasonable belief of the peace officer’” that the arrestee had been driving while under the influence of alcohol or drugs. (Mercer, supra, 53 Cal.3d at p. 760, 280 Cal.Rptr. 745, 809 P.2d 404, italics added, quoting Hawkins, supra, 6 Cal.3d 757, 765, 100 Cal. Rptr. 281, 493 P.2d 1145.11)
[57 Cal.Rptr.3d 317]
Harmonizing the two statutes here at issue—section 23612, the implied consent law, and section 13353, the license suspension/revocation law—we agree with the DMV, first that section 23612 reasonably should be construed to apply broadly and generally to the motoring public (that is, to those who take advantage of the public streets, roads, and highways to operate a motor vehicle), and that the statute does not require evidence that actual driving occurred immediately prior to the arrest for driving while under the influence. As Justice Pollak observed in his concurring opinion below, such a construction—under which “consent may be implied by the act of driving at any time, not only during the time period immediately preceding the individual’s arrest”—is “consistent with a literal reading of section 23612.”12 Indeed, as the court observed in Rice, supra, 203 Cal.App.3d 1460, 1465, 250 Cal.Rptr. 832, a contrary interpretation of the implied consent law would disserve the public-safety policy that apparently underlies the legislative intent reflected in the statute.
We further agree with the DMV, and with Rice, supra, 203 Cal.App.3d 1460, 250 Cal.Rptr. 832, and Machado, supra, 10 Cal.App.4th 1687, 13 Cal.Rptr.2d 457, that the primary focus of both statutes (section 23612, the implied consent law, and section 13353, the license suspension/revocation law) is upon whether the officer had probable cause to believe the person had been driving while under the influence, and therefore whether the person lawfully was arrested—and that revocation or suspension of a license under section 13353 does not require proof beyond the four factors listed in sections 13353, subdivision (d), and section 13557, subdivision (b)(1), and made exclusive by section 13558, subdivision (c)(1). In other words, no requirement exists, under either the implied consent law, section 23612, or under the license suspension/revocation statute, section 13353, of proof that the person actually was driving immediately prior to his or her arrest for driving while under the influence.
[57 Cal.Rptr.3d 318]
The legislative history of section 13353 and related statutes confirms our construction of the legislative scheme. Within one year after the Court of Appeal’s 1988 decision in Rice, supra, 203 Cal.App.3d 1460, 250 Cal.Rptr. 832, created a conflict by disagreeing with Medina, supra, 188 Cal. App.3d 744, 233 Cal.Rptr. 557, and declining to add an “actual driving” requirement to the four factors listed in section 13353, the Legislature in 1989 enacted sections 13557, subdivision (b)(1), and 13558, subdivision (c)(1). (See Stats.1989, ch. 1460, §§ 13 & 14, pp. 6512-6514.) As noted above, section 13557, subdivision (b)(1), reiterated the four factors set forth in section 13353, subdivision (d) and its predecessor provisions—including, as the first factor, that the law enforcement officer had “reasonable cause to believe that the person had been driving a motor vehicle” while under the influence—and made clear that those four factors are to be considered by the DMV in its administrative review of orders suspending or revoking a person’s license to drive. Section 13558, subdivision (c)(1), specified that those same four factors “shall be” “[t]he only issues at the hearing….” (Italics added.) When viewed in the context of the then-recent Rice decision, these 1989 amendments to these closely related statutes— particularly the amendment to section 13558, subdivision (c)(1)—constitute an implicit confirmation of Rice’s holding that the four factors, none of which includes actual driving, are the sole factors necessary to trigger suspension or revocation penalties under section 13353.13
In light of the foregoing, we conclude that the Legislature’s omission of actual driving immediately prior to a suspect’s arrest for a driving-while-under-the-influence offense as a requirement with respect to license suspension or revocation under section 13353 was a considered and deliberate decision, and one that we are obliged to honor.
Finally, we reject Troppman’s suggestion that the inclusion of the statutory language “pursuant to section 23612″ in section 13353—a phrase added to that statute in 1985 (see Stats.1985, ch. 735, § 2, p. 2386 [incorporating the words "pursuant to section 23157"—the predecessor to section 23612])—implicitly might reflect an intent on the part of the Legislature to incorporate into section 13353 an actual-driving requirement. Troppman’s premise is that
[57 Cal.Rptr.3d 319]
the implied consent law, section 23612, itself contains an actual driving requirement—but as observed above, we reject that premise, and instead agree with the DMV that section 23612 applies broadly and generally to “those who drive”—that is, to those who avail themselves of the public streets, roads, and highways to operate motor vehicles in this state. This is a category that clearly includes Troppman, who drove to the very spot, remote from her home, where she eventually was arrested. This category also includes anyone else—licensed or otherwise—who uses public streets or roadways in driving a motor vehicle in this state.
Although nothing in the legislative history we have reviewed concerning the 1985 amendment reveals why the language “pursuant to section 23612″ was added to the statute at that time, there also is no indication that the Legislature in taking this action intended to impose or incorporate an actual-driving requirement. In view of the foregoing legislative history, we cannot conclude that the Legislature intended to require actual driving immediately prior to the person’s lawful arrest under either the implied consent law, section 23612, or the suspension/revocation statute, section 13353.
III
When a law enforcement officer observes a person inside a motor vehicle and has reasonable cause to believe that person has been driving while under the influence of alcohol or a drug, and the four findings required by section 13353, subdivision (d) are made, that person’s license to operate a motor vehicle may be suspended or revoked. Such sanctions under section 13353 are applicable whether or not the individual was driving immediately prior to his or her arrest.
Accordingly, the DMV was not required to find that Troppman actually was driving immediately prior to the time of her arrest, and the superior court erred in concluding otherwise. The circumstances that Troppman, by her own admission, drove her vehicle shortly before a law enforcement officer observed her slumped over the wheel (and a bottle of wine partially consumed by her that evening within her reach), that she acted in a manner that provided the officer with reasonable cause to believe she had been driving while under the influence of alcohol and thus to lawfully arrest her, and that she subsequently refused to complete chemical testing, provided the DMV with a sufficient basis under section 13353 to suspend her driver’s license.
IV
The judgment of the Court of Appeal is affirmed.
KENNARD, BAXTER, WERDEGAR, CHIN, MORENO, JJ., and KLEIN, J.*, concur.
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Notes:
1. All further statutory references are to the Vehicle Code unless otherwise indicated.
2. Sixteen years ago, in addressing a related question, we highlighted the issue presented here and invited the Legislature to “consider resolving [this] problem … that has divided the Courts of Appeal….” (Mercer v. Department of Motor Vehicles (1991),53 Cal.3d 753, fn. 24, 280 Cal.Rptr. 745, 809 P.2d 404 (Mercer), citing Medina, Jackson, and Rice; see also post, fn. 11.) The Legislature, however, has not addressed this issue in the interim.
3. Pursuant to the applicable statutory mandates, Wheaton took possession of Troppman’s driver’s license and served her with a “suspension/revocation order and temporary driver license” that informed Troppman her privilege to operate a motor vehicle would be suspended or revoked, effective in 30 days, unless Troppman requested a hearing within 10 days. (§§ 13353, subds. (a)-(b), 13353.2, subds. (a)-(c), 23612, subds. (e)-(f).) Troppman requested a hearing.
4. The Court of Appeal majority adopted an analysis consistent with Rice, supra, 203 Cal. App.3d 1460, 250 Cal.Rptr. 832, and Machado, supra, 10 Cal.App.4th 1687, 13 Cal. Rptr.2d 457. The concurring opinion, authored by Justice Pollak, advanced two theories: First, that “consent [under section 23612] may be implied by the act of driving at any time, not only during the time period immediately preceding the individual’s arrest”—and that such a reading “would uphold the application of section 13353 in this case even if implied consent is considered necessary to do so.” Alternatively, Justice Pollak further reasoned, implied consent is not required under section 13353, and that section “authorized [the DMV] to suspend Troppman’s license for refusing to submit to a chemical test, whether or not she was driving immediately before she was requested to submit to the test, and whether or not she impliedly consented to such testing.” As explained below, we agree with, and adopt, the former construction, which also is consistent with the analysis of the majority opinion below.
5. Section 23612, subdivision (a)(1) provides in relevant part: “(A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies. [¶] (B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. [¶] (C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153. [¶] (D) The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the person’s privilege to operate a motor vehicle for a period of one year, (ii) the revocation of the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code that resulted in a conviction, or if the person’s privilege to operate a motor vehicle has been suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2 for an offense that occurred on a separate occasion, or (iii) the revocation of the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurs within 10 years of two or more separate violations of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, or any combination thereof, that resulted in convictions, or if the person’s privilege to operate a motor vehicle has been suspended or revoked two or more times pursuant to Section 13353, 13353.1, or 13353.2 for offenses that occurred on separate occasions, or if there is any combination of those convictions or administrative suspensions or revocations.”
6. That subdivision provides in full: “If a person refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140 [unlawful for a person under 21 years of age to drive with a blood-alcohol content of 0.05 percent or more], 23152 [unlawful for any person to drive under the influence of alcohol or a drug, or to drive with a blood-alcohol content of 0.08 percent or more], or 23153 [unlawful for any person to drive under the influence of alcohol or a drug and cause bodily injury to another], and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following: [¶] (1) Suspend the person’s privilege to operate a motor vehicle for a period of one year. [¶] (2) Revoke the person’s privilege to operate a motor vehicle for a period of two years…. [¶] (3) Revoke the person’s privilege to operate a motor vehicle for a period of three years ….”(§ 13353, subd. (a).)
At the time of the incident that gave rise to these proceedings, the relevant language of sections 13353 and 23612 was virtually identical to the current language quoted above. Although we quote the current language of the statutes, our analysis also applies to the former statutory language in effect in 2003 when the incident in question occurred.
7. Section 13557, subdivision (b)(1) provides in relevant part: “If the department determines in the review of a determination made under Section 13353 or 13353.1, by a preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation: [¶] (A) That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, or 23153. [¶] (B) That the person was placed under arrest…. [¶] (C) That the person refused or failed to complete the chemical test or tests after being requested by a peace officer. [¶] (D) That … the person had been told that his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to, and complete, the required testing. [¶] If the department determines, by a preponderance of the evidence, that any of those facts were not proven, the department shall rescind the order of suspension or revocation and, provided the person is otherwise eligible, return or reissue the person’s driver’s license pursuant to Section 13551. The determination of the department upon administrative review is final unless a hearing is requested pursuant to Section 13558.”
The four findings noted above that must be made pursuant to section 13557, subdivision (b)(1), in order to support a suspension or revocation of one’s license to operate a motor vehicle, mirror the four issues that define the scope of the DMV’s administrative review. (See § 13353, subd. (d), quoted ante, at the close of part II.A.)
8. Section 13558, subdivision (c)(1), provides in relevant part: “The only issues at the hearing on an order of suspension or revocation pursuant to Section 13353 or 13353.1 shall be those facts listed in paragraph (1) of subdivision (b) of Section 13557.”
9. The court further observed in Rice: “Rather than carve out an exception, the legislative policy tries to get these people off the road and out of harm’s way. In light of the severity of the problem and difficulty of detection, the law encourages compliance with the implied consent law in situations where the officer reasonably suspects the arrestee to have been driving while under the influence of alcohol or drugs. To bar license suspension of persons who are lawfully arrested but are subsequently found not to be the actual driver would render enforcement more difficult at a time when society deserves increased protection in eradicating a problem which unfortunately has become all too common in our modern, mobile culture.” (Rice, supra, 203 Cal.App.3d at p. 1465, 250 Cal.Rptr. 832.)
10. In attempting to discern the intent of the Legislature, we rely upon well-settled rules. “`The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute…. An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in light of the statutory scheme [citation]; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [Citation].’ [Citation.]” (People v. Shabazz (2006),38 Cal.4th 55, 40 Cal.Rptr.3d 750, 130 P.3d 519.) Courts are “not to insert what has been omitted, or to omit what has been inserted….” (Code Civ. Proc., § 1858; California Teachers Assn. v. Governing Bd. of Rialto Unified School District (1997),14 Cal.4th 627, 59 Cal.Rptr.2d 671, 927 P.2d 1175.)
11. In Mercer, which involved a factual setting similar to that of the present case, the issue was whether the “lawful arrest” requirement of the implied consent statute (currently § 23612) and the related license revocation statute (§ 13353) had been met where, under the law then in effect, the officer lacked statutory authority to effect a warrantless misdemeanor arrest for a driving-while-under-the-influence offense that was not committed in the officer’s direct presence. (Mercer did not present the issue confronting us here—the arrestee in that case did not claim that the revocation of his license was void because there was no proof or finding that he impliedly consented to testing by being a person who “drives a motor vehicle.”) We held in Mercer that the lawful arrest requirement had not been met, because under the statutes then in effect a warrantless misdemeanor arrest for driving while under the influence was permissible only if the officer observed some volitional movement of the vehicle caused by the suspected driver, but we also noted that the Legislature was free to revise the statutes to yield a different result. (Mercer, supra, 53 Cal.3d at p. 769, 280 Cal.Rptr. 745, 809 P.2d 404.) Thereafter, the Legislature took such action, allowing warrantless arrest for a misdemeanor driving-while-under-the-influence violation not committed in the arresting officer’s presence, in circumstances in which the person otherwise might destroy or conceal evidence. (§ 40300.5, subd. (e), as added by Stats.1996, ch. 1078, § 6, p. 7366; see People v. Schofield (2001),90 Cal.App.4th 968, 109 Cal.Rptr.2d 429 [authority extends to cases in which metabolic evidence would be dissipated over time].)
12. We also observe that there is no danger that such a construction would require a person, simply because he or she occasionally drives, to submit (on pain of loss of driving privileges) to any and all law enforcement demands, however arbitrary in time, place, and circumstance, to a chemical sobriety test. Sections 13353 and 23612 both condition the loss-of-license sanction upon the DMV’s finding of a lawful arrest for driving while under the influence of alcohol or a drug—a finding that is dependent upon an officer’s possessing probable cause to believe the person was driving in that condition.
13. Additional support for this conclusion is reflected in the history of former section 13558, subdivision (c)(2), governing license suspension pursuant to section 13353.2, which proscribed “driving” or being “in actual physical control of a motor vehicle” “when” having a specified blood-alcohol content. When enacted in 1989, section 13558, subdivision (c)(2), provided that “the only issues” at a license-suspension hearing conducted under that section included “whether the person was driving or in actual physical control of a motor vehicle when the person had” a specified blood-alcohol content. (Stats.1989, ch. 1460, § 14, p. 6514.) By so providing, the Legislature drew a clear distinction between the language used in subdivision (c)(1) and that used in subdivision (c)(2) of section 13558: The Legislature (1) required under the former subdivision only that a peace officer have reasonable cause to believe that the person had been driving a motor vehicle while under the influence, but (2) required under `the latter subdivision evidence that the licensee “was driving” (or was in actual physical control of) a motor vehicle “when” the person had a certain blood-alcohol content. This distinction demonstrates that when the Legislature mandated in the former subdivision that the issues to be resolved at a section 13353 suspension or revocation hearing would be limited to “only” four factors, not including actual driving immediately prior to the arrest for driving under the influence, the Legislature obviously understood how to clearly provide otherwise had it intended to make such actual driving a requirement for license suspension or revocation.
* Presiding Justice, Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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[781 So.2d 348]
Thomas D. Simon, Montgomery, for appellant.
David A. McDowell, Prattville, for appellee.
LONG, Presiding Judge.
Following a trial de novo in the circuit court, a jury found the appellant, David Leslie Hopper, guilty of driving while under the influence (“DUI”),1 driving on the wrong side of the road, improper lane usage, possession of marijuana in the second degree, and possession of drug paraphernalia. For the DUI conviction (CC-98-222), the trial court sentenced Hopper to 10 days in the city jail; that sentence was suspended and Hopper was placed on 12 months’ probation. For driving on the wrong side of the road (CC-98-223) and for improper lane usage (CC-98-224), the trial court fined Hopper $25 for each conviction. For possession of marijuana in the second degree (CC-98-225), the trial court sentenced Hopper to six months in the city jail. For possession of drug paraphernalia (CC-98-226), the trial court sentenced Hopper to 30 days in the city jail. The sentences were ordered to run concurrently.
The State’s evidence tended to show the following. On September 13, 1997, at approximately 8:30 p.m., Corp. Howard Daniel Fells of the Prattville Police Department was travelling south in his patrol car on U.S. Highway 31 in Prattville when he
[781 So.2d 349]
noticed a white 1992 Pontiac Bonneville automobile travelling in the same direction. Also travelling south on Highway 31, in a second patrol car near Corp. Fells’s car, was Sgt. Anthony L. Ricks of the Prattville Police Department. Corp. Fells and Sgt. Ricks were responding to a reported trespassing incident near Cooter’s Pond Road.
Corp. Fells testified that the white Bonneville was travelling in the far left lane of the highway when suddenly, without giving a turn signal, the Bonneville cut across the middle lane of traffic and into the right turn lane, cutting off both Corp. Fells’s vehicle and Sgt. Ricks’s vehicle. Corp. Fells stated that he had to slam on his brakes to avoid hitting the Bonneville. He stated that the Bonneville then turned left onto Scenic View Drive, running a stop sign in the process, and then immediately turned right onto Cooter’s Pond Road. According to Corp. Fells, the Bonneville proceeded down the wrong side of Cooter’s Pond Road for approximately 300 yards.
Corp. Fells flashed the lights on his patrol car and signalled for the Bonneville to stop. Corp. Fells and Sgt. Ricks then pulled their vehicles in behind the stopped Bonneville. The Bonneville’s driver?the appellant Hopper?immediately got out of the Bonneville and began walking toward Corp. Fells’s patrol car; however, Corp. Fells ordered Hopper to return to his vehicle. After Hopper returned to the Bonneville, Corp. Fells approached the driver’s side of the car while Sgt. Ricks approached the passenger side.
There were two passengers in the Bonneville with Hopper. Corp. Fells asked Hopper to step out of the vehicle, and Hopper complied. Corp. Fells testified that at that point he smelled the odors of alcohol and marijuana emanating from Hopper’s person. Corp. Fells also stated that Hopper’s speech was slurred.
Corp. Fells then asked Hopper to step to the rear of the Bonneville so that he could administer three field-sobriety tests to Hopper. According to Corp. Fells, Hopper failed both the “finger-to-nose” test, and the “count” test. He testified that after Hopper failed the “finger-to-nose” test, Hopper refused to take the test again. Corp. Fells also stated that he attempted to give a horizontal-gaze-nystagmus test, but that Hopper refused to follow his instructions for taking the test.
After Hopper failed, or refused to complete, the field-sobriety tests, Corp. Fells searched Hopper’s person. During this search, Corp. Fells found a small pipe in Hopper’s pants pocket containing what he believed to be marijuana residue. Hopper was arrested for driving while under the influence of a controlled substance and for possession of drug paraphernalia. Corp. Fells also gave Hopper written citations for driving on the wrong side of the road and for improper lane usage.
After Hopper was placed under arrest, Sgt. Ricks called for a tow truck to take Hopper’s vehicle to an impoundment lot. According to Sgt. Ricks, before the tow truck arrived, he searched the Bonneville “to make sure there were no valuables or weapons in the car before the wrecker service towed it away.” (R. 113.) Under the front passenger-side seat of the car, Sgt. Ricks discovered a bag of what was later determined to be marijuana. Hopper was subsequently charged with possession of marijuana in the second degree.
Following a bench trial in the district court, Hopper was convicted of driving while under the influence, driving on the wrong side of the road, improper lane usage, possession of marijuana in the second degree, and possession of drug paraphernalia. He appealed for a trial de novo in
[781 So.2d 350]
the circuit court, where a jury found him guilty on all counts.
I.
Hopper contends that the trial court erred in denying his motion to suppress the pipe found in his pants pocket and the bag of marijuana found under the front passenger-side seat of his automobile because, he says, both were the products of an illegal search and seizure. (Issues IV and V in Hopper’s brief to this court.)
In support of his contention that the discovery of the marijuana pipe in his pants pocket was the product of an unlawful search, Hopper directs our attention to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Hopper maintains that, under Terry, Corp. Fells was not warranted in conducting a “protective patdown” of Hopper’s person because, Hopper says, there was no evidence that Corp. Fells felt threatened by Hopper or felt that his safety or the safety of others was in danger. In addition, Hopper maintains that even if a protective patdown was justified, Corp. Fells exceeded the lawful scope of Terry by reaching into his pants pocket and retrieving the marijuana pipe.2
Although the argument Hopper makes on appeal is that the search of his person was unlawful under Terry, we find it unnecessary to reach the Terry issues raised by Hopper because we conclude that the search of Hopper’s person was proper as a search incident to a lawful arrest.
“This Court has long held that warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. Chevere v. State, 607 So.2d 361, 368 (Ala.Cr.App.1992). These exceptions are: (1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985). (Emphasis added [in Bivins ].) Pursuant to a lawful arrest, a search of the person can be conducted for the purpose of obtaining weapons, evidence, or contraband. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).”
Bivins v. State, 710 So.2d 521, 524 (Ala.Cr. App.1997).
Corp. Fells testified that when he initially stopped Hopper, Hopper smelled of alcohol and marijuana and his speech was slurred. Hopper subsequently failed (or refused to perform) three field-sobriety tests administered by Corp. Fells. Under these circumstances, Corp. Fells had probable cause to arrest Hopper for driving under the influence of alcohol and/or a controlled substance. See Rule 4.1(a)(1)(ii) and (iii), Ala.R.Crim.P. (“A law enforcement officer may arrest a person without a warrant if … [a]ny offense has been committed in the law enforcement officer’s presence or view, or … [t]he arrest is otherwise authorized by statute, such as
[781 So.2d 351]
Ala.Code 1975, ?? 32-5-171, 32-5A-191, 15-10-3.”). Moreover, the odor of marijuana emanating from Hopper, coupled with Hopper’s apparent physical impairment, provided probable cause to arrest Hopper for possession of a controlled substance. See State v. Mathews, 597 So.2d 235, 237-38 (Ala.Cr.App.1992); and State v. Betterton, 527 So.2d 743, 746 (Ala.Cr. App.1986), aff’d, 527 So.2d 747 (Ala.1988).
Instead of immediately arresting Hopper, Corp. Fells searched Hopper and found the marijuana pipe in his pants pocket. At that point, Corp. Fells formally arrested Hopper. Although the search of Hopper preceded his formal arrest, it is well settled that “`[a] search conducted immediately prior to an arrest may be justified as incident to arrest if the police had probable cause to arrest the suspect before conducting the search.’” State v. Mitchell, 722 So.2d 814, 821 (Ala.Cr.App. 1998), quoting Price v. State, 725 So.2d 1003, 1040 (Ala.Cr.App.1997), aff’d, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999). In Seay v. State, 651 So.2d 81 (Ala.Cr.App.1994), we stated:
“`A search conducted prior to the formal act of arresting is unreasonable only where “a lawful arrest could not have been made prior to the search.” LaFave, Search and Seizure, ? 5.4(a) (2d ed. 1987).
“`”. . . .
“`”`… If the prosecution shows probable cause to arrest prior to a search of a man’s person, it has met its total burden. There is no case in which a defendant may validly say, “Although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards.”‘
“`”. . . .
“`”… [T]he Supreme Court correctly concluded in Rawlings v. Kentucky, [448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980),] that `where the formal arrest quickly followed on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa,’ so long as the fruits of the search were `not necessary to support probable cause to arrest.’”
“`LaFave, Search and Seizure, ? 5.4(a)(2d ed. 1987).’
“Green v. State, 571 So.2d 356, 359-60 (Ala.Cr.App.1990)(quoting, in part, Peters v. New York, 392 U.S. 40, 41, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917 (1968)). (Emphasis in original.) Also quoted in Callahan v. State, 644 So.2d 1329, 1332 (Ala.Cr.App.1994).”
651 So.2d at 83.
Because probable cause was sufficiently established prior to the search, and thus the marijuana pipe found in Hopper’s pants pocket was “not necessary to support probable cause to arrest,” the search was valid as incident to a lawful arrest. In addition, contrary to Hopper’s contention, because Hopper’s arrest was lawful, the search of the his car was also lawful. “`After arresting the driver of an automobile, an officer “may, as a contemporaneous incident of that arrest, search the passenger compartment” of that car.’” Jones v. State, 631 So.2d 285, 288 (Ala.Cr.App. 1993), quoting New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981).
Accordingly, the trial court did not err in denying Hopper’s motion to suppress to the marijuana pipe found in his pants pocket or the bag of marijuana found in his vehicle.

[781 So.2d 352]
II.
Hopper also contends that the trial court erred in denying his motion for a judgment of acquittal on the charge of improper lane usage, see ? 32-5A-88(1), Ala.Code 1975. (Issue III in Hopper’s brief to this court.) Specifically, Hopper contends that the uniform traffic ticket and complaint (“UTTC”) and the solicitor’s complaint both charge him with improper lane usage on Cooter’s Pond Road, which, Hopper says, is not a road with lane markings as required by ? 32-5A-88, Ala.Code 1975. Section 32-5A-88, Ala.Code 1975, which sets out the rules regarding lane usage, states that “[w]henever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply….”
The record reflects that the UTTC charging Hopper with improper lane usage stated the location of the offense as “at or near Cooter’s Pond Road and Scenic Drive.” (C. 79.) The solicitor’s complaint similarly states the location of the offense as being “upon a public highway or street, namely, Cooter’s Pond Road at Scenic Drive.” (C. 83.) The testimony at trial indicated that Corp. Fells and Sgt. Ricks first encountered Hopper at the intersection of Highway 31 and Scenic Drive. According to Corp. Fells’s testimony, Hopper cut off both patrol cars when he crossed over two lanes of traffic on Highway 31 without signaling. Hopper then ran a stop sign as he turned off Highway 31 onto Scenic Drive. Corp. Fells and Sgt. Ricks followed Hopper and eventually stopped him on Cooter’s Pond Road. Corp. Fells testified that Highway 31 is divided into two or more clearly marked lanes.
The State’s evidence was sufficient to establish improper lane usage. The testimony of Corp. Fells clearly established that Hopper violated ? 32-5A-88, Ala.Code 1975, while he was driving on Highway 31. Although the UTTC and the solicitor’s complaint listed the location of the offense as Cooter’s Pond Road (where Hopper was actually stopped), rather than Highway 31 (where Hopper committed the traffic infraction), it is well settled that an allegation of the location of the offense in the charging instrument is immaterial to the charge; thus, any variance between the location in the charging instrument and the location adduced by the evidence introduced at trial is also immaterial. See Perry v. State, 549 So.2d 119 (Ala.Cr.App. 1988).
Accordingly, the trial court did not err in denying Hopper’s motion for a judgment of acquittal on the charge of improper lane usage.
III.
In several related issues, Hopper contends that the trial court erred in denying his motion to dismiss the charge of driving while under the influence of a controlled substance and his motion for a new trial on the charge of driving while under the influence of a controlled substance because, he says (1) the UTTC charging him with DUI failed to apprise him of the offense with which he was charged because the UTTC miscited the Code section (Issue I in Hopper’s brief to this court); (2) the UTTC?which Hopper says charged him with driving while under the influence of alcohol?was, without Hopper’s consent and over his objection, improperly amended by the solicitor’s complaint to charge a different offense, specifically, driving while under the influence of a controlled substance (Issue II in Hopper’s brief to this court); and (3) the trial court’s jury instructions, combined with the general verdict form given to the jury, effectively resulted in two additional charges being levied against Hopper during his
[781 So.2d 353]
trial. (Issue I in Hopper’s brief to this court.)
On the UTTC charging Hopper with DUI, the block next to the line reading “while … [u]nder the influence of controlled substance” was checked. (C. 10.) However, on the portion of the UTTC listing the Code section violated, “? 32-5A-191(a)(2), Ala.Code 1975,” was written. Section 32-5A-191(a)(2), Ala.Code 1975, defines DUI as driving or being in actual physical control of any vehicle “while under the influence of alcohol.” Hopper was convicted in the district court of driving or being in actual physical control of any vehicle while under the influence of a controlled substance, a violation of ? 32-5191(a)(3), Ala.Code 1975. When Hopper appealed to the circuit court for a trial de novo, the prosecutor filed a solicitor’s complaint correcting the miscitation on the UTTC and charging Hopper with “driv[ing] or hav[ing] under his actual physical control a motor vehicle while under the influence of a controlled substance, in violation of Section 32-5A-191(a)(3) Of the Code of Alabama, as amended.” (C. 12.) Hopper subsequently filed a motion to dismiss the DUI charge in the circuit court on the ground that the UTTC was fatally defective and that it had been improperly amended by the solicitor’s complaint. Hopper’s motion to dismiss was denied. It appears that the trial court held a hearing on the motion before denying it, but a transcript of that hearing is not included in the record on appeal.
Initially, we note that Hopper’s contention that the UTTC failed to apprise him of the charge against him because it miscited the Code section is not preserved for review. Although Hopper contends that he objected to the UTTC at the district-court level, there is no evidence in the record before us that such an objection was made. “It is the appellant’s duty to provide this court with a complete record on appeal.” Knight v. State, 621 So.2d 394, 395 (Ala.Cr.App.1993). “Where the record is silent, we will not hold that the trial court erred.” Id. Because there is nothing in the record showing that Hopper objected to the UTTC until he filed his motion to dismiss in the circuit court, he is deemed to have waived any irregularities in the UTTC. See Hosmer v. City of Mountain Brook, 507 So.2d 1038 (Ala.Cr. App.1987).
However, even assuming for the sake of argument that this issue was preserved for review, we would still decide it adversely to Hopper. It is well settled that “[a] warrant does not require the same particularity which is demanded in indictments.” City of Dothan v. Holloway, 501 So.2d 1175, 1176-77 (Ala.Cr.App.1986). Even the “incorrect citation of a Code section does not void an indictment which otherwise states an offense.” Royer v. State, 542 So.2d 1301, 1303 (Ala.Cr.App. 1988). Because the “`mere inclusion of the applicable Code section in a charging instrument is [in]sufficient “to put the defendant on notice that he [is] charged with [a] violation of any provable part of the statutory provision,”`” id., the reference to a statutory source in an indictment is considered a “`”matter of convenience and not of substance.”‘” Griffin v. State, 428 So.2d 213, 215 (Ala.Cr.App.1983). It is the language describing the offense that apprises the accused of the charge against him, not the Code citation. Because Corp. Fells checked the line on the UTTC describing the offense of driving while under the influence of a controlled substance, Hopper was sufficiently put on notice of the charge against him. “[A]ny miscitation of the applicable Code section [in the UTTC] was `mere surplusage.’” Bexley v. State, 705 So.2d 549, 552 (Ala.Cr.App. 1997). See also Ex parte Bush, 431 So.2d
[781 So.2d 354]
563, 564 (Ala.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983).
Because the UTTC charged Hopper with driving while under the influence of a controlled substance, the solicitor’s complaint also charging Hopper with driving while under the influence of a controlled substance, but citing the correct Code section, was not, as Hopper contends, an improper amendment to the UTTC. Rule 13.5(a), Ala.R.Crim.P., states:
“A charge may be amended by order of the court with the consent of the defendant in all cases, except to change the offense or to charge new offenses not contemplated by the original indictment. The court may permit a charge to be amended without the defendant’s consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.”
(Emphasis added.) This court has held that “[u]nder this rule, an offense is `different’ from the charged offense if it is not contemplated or included in the offense alleged in the original complaint or indictment.” Bexley, 705 So.2d at 551. The solicitor’s complaint, which charged Hopper with driving while under the influence of a controlled substance, added nothing new or different to the UTTC, which also charged Hopper with driving while under the influence of a controlled substance; it merely cited the correct Code section. This was not an amendment charging an “additional or different offense.” Thus, Hopper’s argument that the solicitor’s complaint improperly amended the UTTC is not well taken.
However, we agree with Hopper’s contention that the trial court’s jury instructions, combined with the general verdict form given to the jury, effectively resulted in two additional charges being levied against Hopper during his trial; thus, we must reverse Hopper’s conviction for driving under the influence.
The record reveals that the trial court improperly instructed the jury on three different kinds of DUI. The trial court instructed the jury that it could find Hopper guilty of driving while under the influence of alcohol, see ? 32-5A-191(a)(2), Ala. Code 1975, driving while under the influence of a controlled substance, see ? 32-5A-191(a)(3), Ala.Code 1975, or driving while under the combined influence of alcohol and a controlled substance, see ? 32-5A-191(a)(4), Ala.Code 1975. Because Hopper was actually charged only with violating ? 32-5A-191(a)(3), Ala.Code 1975?i.e., driving while under the influence of a controlled substance?the trial court’s instructions that the jury could find Hopper guilty under the two other methods of DUI were erroneous. See Royster v. City of Montgomery, 470 So.2d 1348, 1350 (Ala.Cr.App.1985) (“trial judge erred in charging the jury on the offense of driving under the influence of a controlled substance and the offense of driving under the influence of a combination of a controlled substance and alcohol” where defendant was charged only with driving under the influence of alcohol).
The error in the trial court’s jury instructions was compounded by the general verdict form given to the jury. Regarding the DUI conviction, the jury returned the following verdict:
“Guilty Verdict?DUI CC-98-222
“We the jury find the Defendant, David Leslie Hopper, guilty of the offense of DUI. [Driving Under the Influence].”
(C. 39.)
The trial court’s erroneous jury instructions, combined with the general verdict form, make it impossible for a reviewing court to determine which subsection of ? 32-5A-191, Ala.Code 1975, the jury actually found Hopper guilty of violating.
[781 So.2d 355]
The trial court’s instructions covered three separate offenses: driving while under the influence of alcohol, driving while under the influence of a controlled substance, and driving while under the influence of a combination of alcohol and controlled substances. Because Hopper was charged only with driving while under the influence of a controlled substance, he could not legally be convicted of driving while under the influence of alcohol or of driving while under the combined influence of alcohol and controlled substances. However, because the general verdict form for the DUI charge does not indicate under which subsection of ? 32-5A-191, Ala.Code 1975, Hopper was found guilty and because the trial court instructed the jury on three variants of DUI, we are unable to determine whether the jury convicted Hopper of driving while under the influence of a controlled substance, of driving while under the influence of alcohol, or of driving while under the combined influence of alcohol and controlled substances. Thus, we must reverse Hopper’s conviction for “driving while under the influence” and remand this cause for a new trial on the charge of driving while under the influence of a controlled substance, a violation of ? 32-5191(a)(3), Ala.Code 1975.
However, Hopper’s convictions for driving on the wrong side of the road, improper lane usage, possession of marijuana in the second degree, and possession of drug paraphernalia are affirmed.
AFFIRMED AS TO CC-98-223, CC-98-224, CC-98-225, AND CC-98-226; REVERSED AS TO CC-98-222; AND REMANDED.
McMILLAN, COBB, BASCHAB, and FRY, JJ., concur.

——–

Notes:
1. Because we are unable to determine which variant of the offense of DUI the jury actually found Hopper guilty of committing (see Part III of this opinion), we refer to Hopper’s DUI conviction as being for “driving while under the influence,” without specifying whether the jury found Hopper to be driving while under the influence of alcohol, while under the influence of a controlled substance, or while under a combination of both alcohol and a controlled substance.
2. Although it is not challenged by Hopper on appeal, we note that the initial stop of Hopper’s vehicle was valid. “`[W]hile mere suspicion, without more, is not sufficient justification for stopping a vehicle, if the officer can point to independent facts which lead to his “articulable and reasonable” suspicion that the … occupants [of the vehicle] have violated some law, then stopping the vehicle would be justified under the fourth amendment.’” Ervin v. State, 630 So.2d 115, 117 (Ala.Cr. App.1992), quoting Ex parte Yeung, 489 So.2d 1106, 1109 (Ala.1986). Corp. Fells’s personal observations of Hopper improperly changing lanes, running a stop sign, and driving on the wrong side of the road?all clear traffic violations ?provided sufficient grounds for him to stop Hopper’s vehicle.
——–

[14 Cal.Rptr.3d 3]
Sandra Gillies and Bradley A. Bristow, Sacramento, under appointments by the Supreme Court, and Valerie G. Wass, Pasadena, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez, Marc J. Nolan, Janet E. Neeley and Tiffany S. Shultz, Deputy Attorneys General, for Plaintiff and Respondent.

[14 Cal.Rptr.3d 2]
GEORGE, C.J.
Following the enactment of Proposition 36, the “Substance Abuse and Crime Prevention Act of 2000,” which took effect July 1, 2001, a defendant who has been convicted of a “nonviolent drug possession offense” must receive probation and diversion into a drug treatment program, and may not be sentenced to incarceration as an additional term of probation. (Pen. Code, ? 1210.1, subd. (a).)1 A defendant is ineligible for probation and diversion to such a program, however, if he or she has been “convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.” (Pen.Code, ? 1210.1, subd. (b)(2).)2 An offense is defined as one “not related to the use of drugs” if it does not involve the defendant’s “simple possession or use” of drugs or drug paraphernalia, presence where drugs are being used, or failure to register as a drug offender, or any similar activity. (? 1210, subd. (d).)
The issue in the present case is whether defendant, who was convicted of transporting a controlled substance (methamphetamine),
[14 Cal.Rptr.3d 4]
a felony, together with driving a vehicle while under the influence of a controlled substance, a misdemeanor, has been “convicted in the same proceeding of a misdemeanor not related to the use of drugs,” within the meaning of section 1210.1, subdivision (b)(2) and section 1210, subdivision (d). We conclude that the misdemeanor of driving a vehicle while under the influence of a controlled substance is “a misdemeanor not related to the use of drugs” within the meaning of those provisions, and that therefore section 1210.1, subdivision (a) is inapplicable to defendant. Accordingly, we affirm the judgment of the Court of Appeal upholding the trial court’s determination that defendant was not entitled to probation and drug treatment diversion under Proposition 36.
I
At approximately 10:40 p.m. on March 17, 2001, a police officer observed a person driving a vehicle (with two passengers) down the center of a road, straddling the center divider, for approximately one block. The officer, suspecting the driver was under the influence of drugs or alcohol, made a traffic stop.
The driver, defendant Michelle Elaine Canty, appeared to be under the influence of alcohol or drugs, and admitted to the officer that she had ingested methamphetamine, which she also had provided to her two passengers, earlier that evening. The officer conducted a search, discovered that defendant possessed two grams of methamphetamine, and arrested her. Later tests confirmed she was under the influence of methamphetamine.
Defendant was charged with several felonies, including transportation, possession for sale, and being under the influence of methamphetamine, as well as several misdemeanors, including driving while under the influence of alcohol and a drug. It further was alleged that defendant had served a prison term in 1996 for possession of methamphetamine.
On June 19, 2001, defendant pleaded guilty to transportation of methamphetamine (Health & Saf.Code, ? 11379, subd. (a)), a felony, and to driving a vehicle while under the influence of alcohol or drugs (Veh.Code, ? 23152, subd. (a)), a misdemeanor. The remaining charges were dismissed.
Subsequently, Proposition 36 having become effective on July 1, 2001, the trial court referred the matter to the probation department to determine whether, pursuant to section 1210.1, subdivision (a), defendant was entitled to probation and diversion to a drug treatment program. The probation report, noting that defendant had suffered several prior convictions, recommended that she not be granted probation under Proposition 36 or any other provision, and that she serve a term in state prison for the felony drug conviction.
Defendant and her mother both submitted written requests that the trial court order that defendant receive drug treatment. Defendant’s letter explained that she previously had attended a drug treatment program that had enabled her to “stay clean” for more than two years, and that she had resumed drug use only recently.
On August 7, 2001, at the sentencing hearing, the trial court denied defendant’s request to be placed on probation and be diverted to a drug treatment program. The trial court determined that defendant was ineligible both because her convictions preceded the effective date of section 1210.1 and because her conviction for driving while under the influence was a “misdemeanor not related to the use of drugs” within the meaning of section 1210.1, subdivision (b)(2).

[14 Cal.Rptr.3d 5]
The trial court imposed and suspended execution of a sentence of two years in state prison for defendant’s conviction of transporting methamphetamine, placed her on five years’ formal probation requiring service of 90 days in county jail, and ordered her to pay restitution and to register as a controlled substance offender. The trial court also imposed a term of six months in county jail for defendant’s conviction of driving a vehicle while under the influence of drugs. Defendant timely filed a notice of reasonable grounds for an appeal based upon the sentence she received, and the trial court issued a certificate of probable cause (? 1237.5).
The Court of Appeal accepted a concession by the Attorney General that the circumstance of defendant’s offenses having predated the enactment of Proposition 36 did not render that measure inapplicable. The appellate court affirmed the trial court’s ruling that defendant was not entitled to be sentenced under the provisions of Proposition 36, concluding that defendant’s conviction for driving while under the influence of drugs was a “misdemeanor not related to the use of drugs” within the meaning of section 1210.1, subdivision (b)(2), and thus precluded probation and diversion to a drug treatment program. We granted defendant’s petition for review.
II
Proposition 36 mandates probation and diversion to a drug treatment program for those offenders whose illegal conduct is confined to using, possessing, or transporting a controlled substance. Its provisions outline “an alternative sentencing scheme” for persons convicted of certain drug offenses. (In re Varnell (2003),30 Cal.4th 1132, 135 Cal.Rptr.2d 619, 70 P.3d 1037 (Varnell).) “In effect, it acts as an exception to the punishment” provided for certain offenses involving controlled substances. (Ibid.)
Section 1210.1, subdivision (a) provides in relevant part that subject to the exceptions set forth, “any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.” Section 1210, subdivision (a) defines a “drug possession offense,” as used in section 1210.1, as “the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term `nonviolent drug possession offense’ does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8.” (As amended Stats.2003, ch. 155, ? 1.)
Section 1210.1, subdivision (b) describes those defendants who are disqualified from receiving mandatory probation and diversion pursuant to section 1210.1, subdivision (a). Section 1210.1, subdivision (b)(1) generally disqualifies persons previously convicted of serious or violent felonies. Section 1210.1, subdivision (b)(2) disqualifies “[a]ny defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.” (Italics added.) Section 1210, subdivision (d) defines the term “misdemeanor not related to the use of drugs” as “a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any
[14 Cal.Rptr.3d 6]
activity similar to those listed in paragraph (1).” (Italics added.)
Defendant contends that misdemeanor driving while under the influence of drugs constitutes an activity similar to “simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender,” and therefore falls within the category of offenses that, as described in section 1210, subdivision (d)(2), do not disqualify a defendant from receiving probation and diversion to a drug treatment program in lieu of traditional punishment. Defendant observes that misdemeanor driving while under the influence of drugs is not similar to those offenses (such as selling or distributing drugs) listed in section 1210, subdivision (a) ? offenses that are not considered to be among the “nonviolent drug possession offense[s]” that entitle a defendant to such probation and diversion.
A
In interpreting a voter initiative such as Proposition 36, we apply the same principles that govern the construction of a statute. (Robert L. v. Superior Court (2003),30 Cal.4th 894, 135 Cal.Rptr.2d 30, 69 P.3d 951; People v. Rizo (2000),22 Cal.4th 681, 94 Cal.Rptr.2d 375, 996 P.2d 27 (Rizo); see Horwich v. Superior Court (1999),21 Cal.4th 272, 87 Cal.Rptr.2d 222, 980 P.2d 927; People v. Superior Court (Jefferson), supra, 97 Cal.App.4th 530, 536, 118 Cal.Rptr.2d 529.) “Our role in construing a statute is to ascertain the Legislatures intent so as to effectuate the purpose of the law. [Citation.]” (Curle v. Superior Court (2001),24 Cal.4th 1057, 103 Cal.Rptr.2d 751, 16 P.3d 166 (Curle); People v. Pieters (1991),52 Cal.3d 894, 276 Cal.Rptr. 918, 802 P.2d 420 (Pieters).)
Our first task is to examine the language of the statute enacted as an initiative, giving the words their usual, ordinary meaning. (Curle, supra, 24 Cal.4th at p. 1063, 103 Cal.Rptr.2d 751, 16 P.3d 166; Rizo, supra, 22 Cal.4th at p. 685, 94 Cal.Rptr.2d 375, 996 P.2d 27.) If the language is clear and unambiguous, we follow the plain meaning of the measure. (Curle, supra, 24 Cal.4th at p. 1063, 103 Cal.Rptr.2d 751, 16 P.3d 166; People v. Birkett (1999),21 Cal.4th 226, 87 Cal.Rptr.2d 205, 980 P.2d 912 (Birkett); People v. Broussard (1993),5 Cal.4th 1067, 22 Cal.Rptr.2d 278, 856 P.2d 1134.) “[T]he plain meaning rule does not prohibit a court from determining whether the literal meaning of a measure comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.” (Lungren v. Deukmejian (1988),45 Cal.3d 727, 248 Cal.Rptr. 115, 755 P.2d 299 (Deukmejian).)
The language is construed in the context of the statute as a whole and the overall statutory scheme, and we give “significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose. [Citation.]” (Curle, supra, 24 Cal.4th 1057, 1063, 103 Cal.Rptr.2d 751, 16 P.3d 166; Horwich v. Superior Court, supra, 21 Cal.4th at p. 276, 87 Cal.Rptr.2d 222, 980 P.2d 927; Pieters, supra, 52 Cal.3d at p. 899, 276 Cal.Rptr. 918, 802 P.2d 420.) The intent of the law prevails over the letter of the law, and “the letter will, if possible, be so read as to conform to the spirit of the act. [Citation.]” (Pieters, supra, at p. 899, 276 Cal.Rptr. 918, 802 P.2d 420.)
“If the Legislature has provided an express definition of a term, that definition ordinarily is binding on the courts.” (Curle, supra, 24 Cal.4th 1057, 1063, 103 Cal.Rptr.2d 751, 16 P.3d 166.) As noted,
[14 Cal.Rptr.3d 7]
section 1210, subdivision (d) defines the term “misdemeanor not related to the use of drugs” as a misdemeanor not involving (1) simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) “any activity similar to” those activities. (Italics added.) The statute does not provide a further definition of the second category, and its boundaries are not self-evident. That part of the definition appears to admit of more than one reasonable interpretation.
We therefore apply the principles that pertain where statutory ambiguity exists, adopting the interpretation that leads to a more reasonable result. (Deukmejian, supra, 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.) It is appropriate to consider evidence of the intent of the enacting body in addition to the words of the measure, and to examine the history and background of the provision, in an attempt to ascertain the most reasonable interpretation. (Birkett, supra, 21 Cal.4th 226, 231-232, 87 Cal.Rptr.2d 205, 980 P.2d 912; Delaney v. Baker (1999),20 Cal.4th 23, 82 Cal.Rptr.2d 610, 971 P.2d 986.)
We also consider that, under the traditional “rule of lenity,” language in a penal statute that truly is susceptible of more than one reasonable construction in meaning or application ordinarily is construed in the manner that is more favorable to the defendant. (People v. Avery (2002),27 Cal.4th 49, 115 Cal.Rptr.2d 403, 38 P.3d 1.) Nonetheless, “`the rule of lenity applies only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.’ . . . `The rule of statutory interpretation that ambiguous penal statutes are construed in favor of defendants is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statutes ambiguities in a convincing manner is impracticable.’ [?] Thus, although true ambiguities are resolved in a defendants favor, an appellate court should not strain to interpret a penal statute in defendants favor if it can fairly discern a contrary legislative intent.” (People v. Avery, supra, 27 Cal.4th at pp. 57-58, 115 Cal.Rptr.2d 403, 38 P.3d 1; see also People v. Floyd (2003),31 Cal.4th 179, 1 Cal.Rptr.3d 885, 72 P.3d 820; People v. Farell (2002),28 Cal.4th 381, 121 Cal.Rptr.2d 603, 48 P.3d 1155; 1 Witkin Epstein, Cal.Criminal Law (3d ed. 2000) Introduction to Crimes, ? 24, pp. 51-53; id. (2003 supp.) ? 24, p. 13.)
B
1
Defendant points out that “being under the influence of drugs” in violation of Health and Safety Code section 11550 constitutes a “nonviolent drug possession offense” pursuant to section 1210, subdivision (a). She urges that the misdemeanor of driving while under the influence of drugs should be equated with that of being under the influence of drugs or of possessing drugs. Defendant reasons that the use of drugs is integral to each offense.
In response to the observation of the Court of Appeal that the driving offense involves public safety, whereas simple use or possession does not, defendant asserts that the presence of a risk to public safety is not the feature that separates qualifying from nonqualifying offenses. Defendant urges that a person may be found guilty of driving while under the influence of drugs despite having driven a minimal distance and not having exposed others to actual danger. A person may be convicted of certain other offenses, such as transportation
[14 Cal.Rptr.3d 8]
of drugs, and still receive diversion under section 1210.1, even though these latter offenses actually pose a greater danger to the public than driving while under the influence of drugs.
We cannot agree with defendant’s equation of the two offenses, for several reasons. As an initial matter, the offenses of being under the influence of drugs and driving while under the influence of drugs differ significantly in the level or degree of impairment required for conviction. One may be guilty of being under the influence of drugs in violation of Health and Safety Code section 11550 by being in that state in any detectable manner: “`The symptoms of being under the influence within the meaning of that statute are not confined to those commensurate with misbehavior, nor to those which demonstrate impairment of physical or mental ability.’” (People v. Enriquez (1996),42 Cal.App.4th 661, 49 Cal.Rptr.2d 710, citing Byrd v. Municipal Court (1981),125 Cal.App.3d 1054, 178 Cal.Rptr. 480; Gilbert v. Municipal Court (1977),73 Cal.App.3d 723, 140 Cal.Rptr. 897.)
By contrast, for a defendant to be guilty of driving while under the influence of drugs in violation of Vehicle Code section 23152, subdivision (a), “`the . . . drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. [Citations.]‘” (People v. Enriquez, supra, 42 Cal.App.4th at p. 665, 49 Cal.Rptr.2d 710 (italics in original); see also Gilbert v. Municipal Court, supra, 73 Cal.App.3d at p. 727, 140 Cal.Rptr. 897; Veh.Code, ? 312.) Driving while under the influence of drugs involves a greater impairment of an individual’s faculties, and in that respect is not “similar” to being merely under the influence of drugs.
Second, the conduct that is the central focus of each statute is not similar. The permissible drug-related misdemeanors described in section 1210, subdivision (d)(1) ? simple possession or use of drugs or drug paraphernalia, presence where drugs are used, or failure to register as a drug offender ? share an emphasis on the individual offenders own private involvement with the proscribed substance. By contrast, the driving-while-under-the-influence misdemeanor described in Vehicle Code section 23152 primarily is concerned not with the offenders use of the proscribed substance, but with his or her use of a motor vehicle. (See Byrd v. Municipal Court, supra, 125 Cal.App.3d 1054, 1058, 178 Cal.Rptr. 480; People v. Davalos (1987),238 Cal.Rptr. 50, 192 Cal.App.3d Supp. 10, 14.) The gravamen of driving while under the influence is driving despite an impairment of capacity. (See Wilkoff v. Superior Court (1985),38 Cal.3d 345, 211 Cal.Rptr. 742, 696 P.2d 134; People v. Goldberg (2003),105 Cal.App.4th 1202, 130 Cal.Rptr.2d 192; Gilbert v. Municipal Court, supra, 73 Cal.App.3d at p. 727, 140 Cal.Rptr. 897.) That offense concerns the driver’s activity as it actually or potentially affects or “transacts” with other persons. In this respect, it is more similar to the “commercial” drug offenses that expressly disqualify a defendant from receiving diversion. (? 1210, subd. (a).)
Third, as a related point, the interest that society seeks to protect by criminalizing each activity is not identical. In proscribing “being under the influence,” the statute’s legislative purpose primarily is to protect the user from the consequences ? such as addiction to the substance used ? of his or her own conduct. (See Bosco v. Justice Court (1978),77 Cal.App.3d 179, 143 Cal.Rptr. 468.)
[14 Cal.Rptr.3d 9]
In proscribing driving while under the influence, the statute’s legislative purpose is to protect the public and guard against the threat of injury to others. (People v. Goldberg, supra, 105 Cal.App.4th at p. 1210, 130 Cal.Rptr.2d 192; People v. Malvitz (1992),14 Cal.Rptr.2d 698, 11 Cal.App.4th Supp. 9, 14; People v. Davalos, supra, 238 Cal.Rptr. 50, 192 Cal.App.3d Supp. 10, 14; see Burg v. Municipal Court (1983),35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732; Taylor v. Superior Court (1979),24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854.) That broad purpose reflects the wider adverse social effects of the prohibited driving activity.
Our comparative analysis of these provisions leads us to conclude, in construing the statutory definition of the term “misdemeanor not related to the use of drugs” as an offense other than those set forth in section 1210, subdivision (d), that the misdemeanor of driving while under the influence is not an activity similar to those misdemeanors involving the simple possession, use, or presence at the use of drugs, or the failure to register one’s status as a drug offender.
2
Because the most reasonable interpretation of a provision may be reflected, in part, by evidence of the enacting body’s intent beyond the statutory language itself, in its history and background (Birkett, supra, 21 Cal.4th 226, 231-232, 87 Cal.Rptr.2d 205, 980 P.2d 912), we also consider the measure as presented to the voters with any uncodified findings and statements of intent. In considering the purpose of legislation, statements of the intent of the enacting body contained in a preamble, while not conclusive, are entitled to consideration. (See People v. Allen (1999),21 Cal.4th 846, 89 Cal.Rptr.2d 279, 984 P.2d 486; Briggs v. Eden Council for Hope Opportunity (1999),19 Cal.4th 1106, 81 Cal.Rptr.2d 471, 969 P.2d 564.) Although such statements in an uncodified section do not confer power, determine rights, or enlarge the scope of a measure, they properly may be utilized as an aid in construing a statute. (See People v. Allen, supra, 21 Cal.4th at pp. 860-861, 89 Cal.Rptr.2d 279, 984 P.2d 486; 1A Sutherland, Statutory Construction (6th ed.2002) 20.03, p. 123.)
In approving the “Drugs, Probation and Treatment Program” initiative on November 7, 2000, the electorate adopted uncodified findings and declarations that treatment for substance abuse is “a proven public safety and health measure,” and that a similar proposition had been endorsed by voters in Arizona with proven success in enhancing public safety.3 In addition, the electorate expressed the purpose and intent to divert nonviolent defendants charged with “simple drug
[14 Cal.Rptr.3d 10]
possession and drug use offenses” from incarceration into community-based substance abuse treatment programs, to halt the expenditure of hundreds of millions of dollars to incarcerate and re-incarcerate “nonviolent drug users” better served by community-based treatment, to enhance public safety by reducing drug-related crime and reserving jails and prisons for serious and violent offenders, and to improve public health by treatment of drug abuse and dependence through proven and effective drug treatment strategies. (Prop.36, ? 3, subds.(a)-(c); see Historical and Statutory Notes, 51 West’s Ann. Pen.Code, supra, foll. ? 1210, p. 249.)
The purpose and intent expressed in the preamble to these statutes tends to reinforce the conclusion that misdemeanor driving while under the influence of drugs is not an activity similar to the conduct that underlies those misdemeanors that merely involve personal interaction with drugs, described in section 1210, subdivision (d). As explained more fully below, the statutes that prohibit driving while under the influence of drugs contemplate graduated levels of incarceration as well as other restrictions, such as suspension or revocation of a drivers license, and thus do not appear to be “simple” offenses for purposes of the probation and diversion statutes.
In construing these statutes, we also may refer to “other indicia of the voters intent, particularly the analyses and arguments contained in the official ballot pamphlet. [Citation.]” (Rizo, supra, 22 Cal.4th 681, 685, 94 Cal.Rptr.2d 375, 996 P.2d 27; Birkett, supra, 21 Cal.4th 226, 243, 87 Cal.Rptr.2d 205, 980 P.2d 912.) Within the ballot summary, argument, and analysis distributed to voters for the November 7, 2000, General Election, the proponents of Proposition 36 stated that the measure was “strictly limited” and “only affects simple drug possession. No other criminal laws are changed.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26, italics added.)4 Individuals “previously convicted of violent or serious felonies . . . will not be eligible for the treatment program unless they’ve served their time and have committed no felony crimes for five years. If convicted of a non-drug crime along with drug possession, they’re not eligible. If they’re convicted of selling drugs, they’re not eligible. (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26, italics added; see also id., analysis of Prop. 36 by Legis. Analyst, pp. 23-24.)” (Varnell, supra, 30 Cal.4th at p. 1144, 135 Cal.Rptr.2d 619, 70 P.3d 1037, italics added in Varnell.)5

[14 Cal.Rptr.3d 11]
In view of the express advice given the voters that Proposition 36 was strictly limited ? affecting “only simple drug possession,” and changing “[n]o other criminal laws” (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26) ? we must assume that the voters did not intend to amend other criminal statutes. If we were to interpret section 1210.1, subdivision (b)(2) not to preclude a defendant convicted of misdemeanor driving while under the influence of drugs from receiving probation and drug treatment under section 1210.1, subdivision (a), however, such a change in a statutory scheme would result.
At present, the Vehicle Code imposes increasingly harsh punishments on those drivers who reoffend in violation of its provisions. Those statutes impose a 96 hour jail term for a first conviction (Veh.Code, 23536, subd. (a)), a 90-day jail term for a second conviction within seven years (Veh.Code, 23540), a 120-day jail term for a third conviction within seven years (Veh.Code, ? 23546), and a term of not less than 180 days in jail (or a term in state prison) for a fourth conviction within seven years (Veh.Code, ? 23550; see People v. Casillas (2001),92 Cal.App.4th 171, 111 Cal.Rptr.2d 651; People v. Davalos, supra, 238 Cal.Rptr. 50, 192 Cal.App.3d Supp. 10, 13-14).
Pursuant to Proposition 36 (? 1210.1, subd. (d)(1)), if the court finds that a defendant has completed an appropriate drug treatment program, the court “shall” expunge the conviction from the defendants record. Thus, such a defendants subsequent conviction of misdemeanor driving while under the influence of drugs would be treated as a first offense. That result would be contrary to the evident intent of the Vehicle Code ? which clearly is to increase, with each new violation, the punishment for driving while under the influence of drugs.6

[14 Cal.Rptr.3d 12]
Further, that result would be inconsistent with the design of the relevant Vehicle Code provisions to punish impaired drivers identically, whether they drive while under the influence of alcohol or drugs. As the Court of Appeal observed, Vehicle Code section 23152 does not make any distinction between a driver impaired by alcohol and a driver impaired by drugs. That section is part of a comprehensive statutory scheme encompassing both “driving-while-under-the influence” treatment programs and mandatory incarceration. (See Veh.Code, ? 23536 et seq.) An interpretation of section 1210.1, subdivision (b)(2) permitting a defendant convicted of misdemeanor driving while under the influence of drugs to receive probation and drug treatment under section 1210.1, subdivision (a), would afford drivers impaired by drugs more lenient treatment than that afforded drivers impaired by alcohol.
Although defendant suggests that such inconsistent treatment is justified because one who drives under the influence of alcohol has not ingested an illegal substance and has a much greater opportunity to participate in appropriate treatment programs, the fact remains that such an interpretation of the probation and diversion measures would work a modification of the statutes proscribing driving while under the influence, contrary to the representations made to the voters in the official ballot pamphlet.
3
We also briefly examine the Arizona statute (Ariz.Rev.Stat., ? 13-901.01) that had its source in an initiative endorsed by the Arizona voters (Proposition 200), which became the model for California’s similar initiative measure. (See, ante, 14 Cal.Rptr.3d at p. 9, fn.3, 90 P.3d at p. 1175, fn. 3.) The purpose of the Arizona statute is to divert nonviolent drug users and possessors to drug treatment programs and reserve prison for drug dealers and violent offenders. (State v. Tousignant (2002),202 Ariz. 270, 43 P.3d 218, 219; State v. Pereyra (2001),199 Ariz. 352, 18 P.3d 146, 149.) The Arizona statutory scheme requires that when a defendant is convicted of a nonviolent first-time drug offense, the court must suspend his or her sentence and impose probation, conditioned upon completion of drug treatment. (State v. Tousignant, supra, 43 P.3d at p. 219.)
Arizona Revised Statutes section 13-901.01 provides that a person convicted of “personal possession or use of a controlled
[14 Cal.Rptr.3d 13]
substance or drug paraphernalia” is eligible to receive probation and treatment. (Id., subd. A.) This statute specifies that “[p]ersonal possession or use of a controlled substance . . . shall not include possession for sale, production, manufacturing or transportation for sale of any controlled substance.” (Id., subd. C.) In Wozniak v. Galati (2001),200 Ariz. 550, 30 P.3d 131, 132-134, the court held that a conviction for driving while under the influence of a controlled substance rendered the defendant ineligible for probation and treatment under the statute. The court explained that the plain language applied to “any person who is convicted of the personal possession or use” of drugs, but that the defendant was convicted of violating a statute prohibiting driving while under the influence of an illegal substance. “[The latter statute] does not proscribe personal possession or use; it proscribes driving under certain conditions” and has the element of endangering others. (Id. at p. 136; State v. Pereyra, supra, 18 P.3d at p. 149 [Prop. 200 differentiates possession of unlawful drugs for personal use from possession for the purpose of commercial trafficking].) The reasoning of the Arizona court applies to the similar statutory scheme before us in the present case.
4
Defendant also observes that in People v. Duncan (1990),216 Cal.App.3d 1621, 265 Cal.Rptr. 612 (Duncan), a case examining whether a defendant charged with driving while under the influence of a controlled substance was entitled to pretrial diversion pursuant to section 1000, the court determined that Vehicle Code section 23152, subdivision (a) “. . . as applied to defendant in this case is a drug related offense” (although, significantly, it is not one of the enumerated offenses for which a defendant is entitled to be diverted). (Id. at p. 1627, 265 Cal.Rptr. 612.) Defendant asserts that because legislative terminology that has been judicially construed presumptively is intended to have the meaning previously determined by the courts (Ford Dealers Assn. v. Department of Motor Vehicles (1982),32 Cal.3d 347, 185 Cal.Rptr. 453, 650 P.2d 328; People v. Weidert (1985),39 Cal.3d 836, 218 Cal.Rptr. 57, 705 P.2d 380), we should conclude that driving while under the influence of drugs is a drug-related offense for purposes of the provisions that are before us in the present case.
The deferred entry of judgment statutes (? 1000 et seq.) are in some ways analogous to Proposition 36. (Varnell, supra, 30 Cal.4th 1132, 1138, 135 Cal.Rptr.2d 619, 70 P.3d 1037.) Pursuant to section 1000, a defendant who has been charged with specified drug offenses and has not committed a crime of violence or threatened violence may undergo a drug education and treatment program in lieu of undergoing a criminal prosecution, and upon satisfactory completion may obtain dismissal of the criminal charges. (30 Cal.4th at pp. 1138-1139, 135 Cal.Rptr.2d 619, 70 P.3d 1037.)
As the court explained in Duncan, supra, 216 Cal.App.3d 1621, 265 Cal.Rptr. 612, however, section 1000 permits pretrial diversion only as to the specifically enumerated drug offenses, and a violation of Vehicle Code section 23152, subdivision (a) is a drug-related offense that is not listed in section 1000. Thus a defendant who commits that offense is rendered ineligible for pretrial drug diversion under section 1000. (Duncan, at p. 1627, 265 Cal.Rptr. 612; People v. Covarrubias (1993),18 Cal.App.4th 639, 22 Cal.Rptr.2d 475.) Nothing said by the court in Duncan suggests that driving while under the influence of a controlled substance would constitute a drug use or drug possession offense for the purpose of
[14 Cal.Rptr.3d 14]
a statutory scheme such as what was subsequently enacted by Proposition 36. As we have discussed, the statutes, voter information, and statutory history of this initiative measure establish that driving while under the influence of drugs is a misdemeanor not related to the use of drugs within the meaning of section 1210.1.
Considering the foregoing points individually and collectively, it is evident to us that section 1210, subdivision (d)(2) may not fairly be construed to include the offense of misdemeanor driving while under the influence of drugs as an “activity similar” to the offenses described in section 1210, subdivision (d)(1). Accordingly, a conviction of misdemeanor driving while under the influence of drugs constitutes “a misdemeanor not related to the use of drugs” that, pursuant to section 1210.1, subdivision (b)(2), disqualifies a defendant from receiving the alternative disposition provided in section 1210.1, subdivision (a). Defendant, convicted of transporting a controlled substance and misdemeanor driving while under the influence of drugs in the same proceeding, is not entitled to, and the trial court did not err in denying, the probation and drug treatment provided under Proposition 36.
III
The judgment of the Court of Appeal is affirmed.
WE CONCUR: KENNARD, BAXTER, WERDEGAR, CHIN, BROWN and MORENO, JJ.

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Notes:
1. Proposition 36 is codified in Penal Code sections 1210, 1210.1, and 3063.1 and Health and Safety Code section 11999.4 et seq. (People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 535, 118 Cal.Rptr.2d 529.)
2. All further undesignated section references are to the Penal Code.
3. In Proposition 36, section 2, the findings and declarations provide in part: “[?] (a) Substance abuse treatment is a proven public safety and health measure. Nonviolent, drug-dependent criminal offenders who receive drug treatment are much less likely to abuse drugs and commit future crimes, and are likelier to live healthier, more stable and more productive lives. [?] (b) Community safety and health are promoted, and taxpayer dollars are saved, when nonviolent persons convicted of drug possession or drug use are provided appropriate community-based treatment instead of incarceration. [?] (c) In 1996, Arizona voters . . . passed the Drug Medicalization, Prevention, and Control Act, which diverted nonviolent drug offenders into drug treatment and education services rather than incarceration. . . . [The Act] is `resulting in safer communities and more substance abusing probationers in recovery,’ has already saved state taxpayers millions of dollars, and is helping more than 75 percent of program participants to remain drug free.” (See Historical and Statutory Notes, 51 West’s Ann. Pen.Code (2004 supp.) foll. ? 1210, p. 249.)
4. The Attorney General has requested that we take judicial notice of that portion of the California General Election Pamphlet prepared for the November 7, 2000 election pertaining to Proposition 36, including the ballot measure summary, analysis by the legislative analyst, arguments pro and con, and the text of the proposed law. We grant this request. (See Varnell, supra, 30 Cal.4th 1132, 1144, fn. 7, 135 Cal.Rptr.2d 619, 70 P.3d 1037; People v. Superior Court (Turner) (2002) 97 Cal.App.4th 1222, 1230, fn. 4, 119 Cal.Rptr.2d 170.)
5. The Attorney Generals ballot measure summary described the initiative as “[r]equir[ing] probation and drug treatment program, not incarceration, for conviction of possession, use, transportation for personal use or being under [the] influence of controlled substances and similar parole violations, not including sale or manufacture. [?] Permits additional probation conditions except incarceration.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) Official Title and Summary of Prop. 36, p. 22.) The Legislative Analysts analysis of Proposition 36 informed the voters: “The measure defines a nonviolent drug possession offense as a felony or misdemeanor criminal charge for being under the influence of illegal drugs or for possessing, using, or transporting illegal drugs for personal use. The definition excludes cases involving possession for sale, producing, or manufacturing of illegal drugs. [?] . . . [?] . . . This measure specifies that certain offenders would be excluded from its provisions and thus could be sentenced by a court to a state prison, county jail, or probation without drug treatment. . . . This measure also excludes offenders convicted in the same court proceeding of a misdemeanor unrelated to drug use or any felony other than a nonviolent drug possession offense. . . .” (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) analysis of Prop. 36 by Legis. Analyst, p. 23.)
6. In her reply brief, defendant asserts that interpreting section 1210.1, subdivision (b)(2) not to exclude a defendant convicted of misdemeanor driving while under the influence of drugs from receiving probation and drug treatment pursuant to section 1210.1, subdivision (a), would not affect the Vehicle Code’s design of increasing the punishment for recidivist offenders. Defendant reasons that in the event a defendant completes drug treatment, section 1210.1, subdivision (d)(1) requires dismissal solely of “the charge upon which the Proposition 36 probation was granted,” and not the conviction of driving while under the influence of drugs. Thus, a subsequent conviction of driving while under the influence of drugs would be appropriately punished as a subsequent offense.
The relevant provisions do not support that view. As amended effective October 11, 2001, section 1210.1, subdivision (a) provides in part: “Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation,” conditioned upon “participation in and completion of an appropriate drug treatment program. . . . A court may not impose incarceration as an additional condition of probation. Probation shall be imposed by suspending the imposition of sentence.” As we have discussed (ante, 14 Cal.Rptr.3d p. 5, 90 P.3d p. 1172), subdivision (b)(2) disqualifies a defendant who, in addition to a nonviolent drug possession offense, “has been convicted in the same proceeding of a misdemeanor not related to the use of drugs.” Subdivision (d)(1) provides in part that “[a]t any time after completion of drug treatment, a defendant may petition the sentencing court for dismissal of the charges. If the court finds that the defendant successfully completed drug treatment, . . . the conviction on which the probation was based shall be set aside and the court shall dismiss the indictment, complaint, or information against the defendant. In addition . . . both the arrest and the conviction shall be deemed never to have occurred.” (Italics added.) Subdivision (e) provides for proceedings to continue or revoke the probation mandated by subdivision (a) when a defendant violates that probation by committing either a new nonviolent drug possession offense, or a new misdemeanor involving simple possession or use of drugs or paraphernalia, presence where drugs are used, failure to register, or similar activity (? 1210, subd.(d)).
Considered as a whole, the provisions require probation for a conviction in the same proceeding of a nonviolent drug possession offense and a drug-related misdemeanor. The provisions also require that, following a defendant’s completion of drug treatment, the conviction itself, rather than a particular charge, will be dismissed, and, together with the arrest, will be deemed never to have occurred. Were we to conclude that a conviction of misdemeanor driving while under the influence of drugs does not preclude eligibility for probation and drug treatment under section 1210.1, subdivision (a), such a disposition would preclude the subsequent use of that misdemeanor to determine the appropriate punishment upon a new violation of the Vehicle Code.
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Rick Kittel, assistant appellate defender, for appellant.
Kim W. Cudney, county attorney, and Phill Kline, attorney general, for appellee.
Before RULON, C.J., GREENE and BUSER, JJ.
BUSER, J.
In November 2003, Michael J. Brown was convicted by a jury of involuntary manslaughter while operating a vehicle under the influence of alcohol (K.S.A.2004 Supp.21-3442) and driving under the influence of alcohol (K.S.A.2004 Supp. 8-1567[a][2]). Brown
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appeals his convictions and sentences. We affirm in part, reverse in part, vacate the sentence, and remand for resentencing.
Factual and Procedural Background
On the evening of April 15, 2003, Clay Stauffer was driving westbound on Highway 36 in Washington County when he noticed headlights approaching from the south on an intersecting road. Stauffer saw the car make a wide turn into the westbound lane of Highway 36 heading east. Stauffer attempted to brake and swerve around the car, but as he swerved to the left, the passenger side of his vehicle collided with the passenger side of the other vehicle. Stauffer was driving about 65 miles per hour when the “big collision” occurred and his car’s air bags deployed.
Following the collision, Stauffer spoke to the occupants of the other car. The driver of the vehicle was Michael Brown. Brown’s wife, Ruth Brown, and their son, Chase Brown, were passengers.
Washington County Sheriff Bill Overbeck, Deputy Larry Wenzl, and Deputy Scott Miller were dispatched to the scene. When Wenzl arrived he found Brown and his son standing beside their vehicle. Brown told the deputy he was not injured but his son had an injured leg and his wife, who remained in the car, was injured. Wenzl talked to Ruth, who told him her stomach hurt, and he observed a laceration on her chin. Wenzl provided emergency care for Ruth until medical personnel arrived.
Wenzel spoke to Brown about the collision. During this conversation, Wenzl noticed Brown’s eyes were bloodshot and he smelled of alcohol. Both Wenzl and Miller observed a bucket in the backseat of Brown’s car containing three unopened beer cans. Miller also seized an open beer can from the side of the road, 5 to 7 feet away from Brown’s vehicle.
Brown was transported by ambulance to the Washington County Hospital, along with his wife and son. Wenzl spoke with Brown again at the hospital. Brown told the deputy he was heading north on a gravel road and pulled onto Highway 36, where he was struck by a car he did not see. Brown admitted he had consumed three beers between 3 p.m. that afternoon and the time of the accident. At Wenzl’s request, Brown provided a blood sample to determine whether Brown’s blood alcohol level was in excess of the legal limit. A Kansas Bureau of Investigation laboratory test later revealed that Brown had a blood alcohol level of 0.10 grams of alcohol per 100 milliliters of blood.
Ruth was treated at Washington County Hospital by a family practice physician, Dr. David Hodgson, who conducted a series of clinical examinations, medical tests, and procedures. The following morning, Ruth’s condition began to deteriorate and she was airlifted to Bryan West Hospital in Lincoln, Nebraska. Following surgery by Dr. Ronald Jex that afternoon to repair a tear in her aorta, Ruth’s condition worsened and she died that evening.
Brown was charged with involuntary manslaughter while operating a vehicle under the influence of alcohol or drugs, driving under the influence of alcohol, transporting an open container of an alcoholic beverage, and a traffic infraction for improper turning. Following a jury trial, he was convicted of involuntary manslaughter while operating a motor vehicle while under the influence of alcohol and driving under the influence of alcohol. Brown was sentenced to a total of 162 months’ imprisonment. He filed a timely appeal.
Speedy Trial
On appeal, Brown argues the district court erred in denying his motion to dismiss for violation of his right to a speedy trial because while he was in custody he was not brought to trial within 90 days of his arraignment, in violation of K.S.A. 22-3402(1).
In particular, we are confronted with the question of how much delay is properly attributable to Brown due to his motion for continuance of jury trial following arraignment. The question of whether there is violation of Brown’s statutory right to speedy trial is a matter of law over which an appellate court has unlimited review, especially if the facts are undisputed. State v. Davis, 277 Kan. 309, 330, 85 P.3d 1164 (2004).
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The facts in this case are undisputed. Brown was in jail pending trial. He was arraigned on June 4, 2003. He pled not guilty, and a trial date was set for August 20, 2003. On July 30, 2003, Brown filed a motion for continuance of the jury trial. In support of his motion Brown claimed: “Counsel needs additional time to retain expert witness to testify on the defendant’s behalf.” Two days later, on August 1, 2003, the court heard and granted Brown’s motion and set a new trial date of October 27, 2003.
On October 27, 2003, the court notified defense counsel that the county attorney had fallen ill and the trial would be continued. On November 6, 2003, the court held a hearing to discuss rescheduling the trial for a second time. On November 7, 2003, a telephone conference call was held and a new trial date of November 20, 2003, was set by the court. On both November 6, 2003, and November 7, 2003, the county attorney advised the court there were no speedy trial concerns.
On November 13, 2003, the defendant filed a motion to discharge for violation of the defendant’s speedy trial rights. The court denied the motion. The case proceeded to trial on November 20, 2003.
Under the speedy trial statute, K.S.A. 22-3402(1), a defendant held in custody solely by reason of a criminal charge must be brought to trial “within ninety (90) days after such person’s arraignment on the charge . . . unless the delay shall happen as a result of the application or fault of the defendant. . . .” (Emphasis added.)
A defendant waives his or her statutory right to a speedy trial by requesting or acquiescing in the granting of a continuance, and a defense counsel’s actions are attributable to the defendant in calculating speedy trial violations. State v. Bloom, 273 Kan. 291, 310, 44 P.3d 305 (2002); State v. Southard, 261 Kan. 744, 748, 933 P.2d 730 (1997).
The specific issue for our consideration is whether the delay after Brown’s motion to continue was granted is attributable to him. Although, as the authorities discussed below show, there is a further question whether the time between the filing of the motion to continue and the ruling is also attributable to Brown, that question was not presented by the parties and we need not reach it under the facts of this case.
Brown argues he should only be charged with the delay from the initial trial date (August 20, 2003) until the rescheduled trial date (October 27, 2003). Under this theory, Brown was incarcerated 101 days from the date of arraignment until commencement of jury trial in violation of his right to a speedy trial.
The State counters that Brown should be charged with the delay from the time his motion for continuance of jury trial was granted (August 1, 2003) until the rescheduled trial date (October 27, 2003). According to the State’s theory, Brown was incarcerated awaiting trial only 82 days from the date of arraignment until commencement of the jury trial in full compliance with his right to a speedy trial.
Our Supreme Court has addressed the speedy trial ramifications of delays attributed to a defendant’s application or fault in a variety of contexts. For example, in State v. Southard, 261 Kan. 744, 933 P.2d 730, the Supreme Court approved the trial court’s ruling in attributing all the time between arraignment and a motions hearing to the defendant because defense counsel requested a hearing date for potential motions. The Supreme Court noted that the clause in K.S.A. 22-3402(1) pertaining to delays caused by the application or fault of the defendant included a reasonable time for the parties to brief issues and the court to decide them “as part of the delay resulting from defendant’s filing a motion.” 261 Kan. at 749, 933 P.2d 730. Moreover, even if the defense never filed any motions during that interim, the time was chargeable to the defendant because the court was accommodating the defendant. 261 Kan. at 749-50, 933 P.2d 730.
In other cases, the Supreme Court has attributed delays to the parties based upon the date a motion for continuance was filed. See State v. Crane, 260 Kan. 208, 215-16, 918 P.2d 1256 (1996) (State filed a motion for continuance requesting independent mental examination after defense expert’s report on
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defendant’s insanity defense; because the State’s need for examination was caused by defendant’s insanity defense, time from the State’s motion for continuance until State’s expert’s report was filed was chargeable to defendant); City of Dodge City v. Downing, 257 Kan. 561, Syl. ¶ 2, 894 P.2d 206 (1995) (delay caused by filing of motion to suppress is charged to defendant; calculated from time motion was filed to the time the court has had a reasonable period to rule on the same); State v. Bafford, 255 Kan. 888, 892-93, 879 P.2d 613 (1994) (charging the State for time between the time defendant is found to be competent to stand trial and the date the defendant filed a motion for continuance).
Brown cites State v. Hines, 269 Kan. 698, 7 P.3d 1237 (2000), in support of his position that the original trial date is controlling in counting time for speedy trial purposes when a defendant applies for a continuance of trial. Hines is unavailing as precedent, however, because the language cited dealt with a different subsection, K.S.A. 22-3402(3)(c), which is now found in K.S.A.2004 Supp. 22-3402(5)(c), and markedly different case facts.
The present case is factually distinguishable from Hines. As characterized by our Supreme Court, Hines was a case wherein “the defendant requested no continuances, and none of the delays in bringing him to trial was by reason of his application or fault.” 269 Kan. at 702, 7 P.3d 1237. Unlike Hines, in the present case, the defendant specifically applied for and received an almost 3-month continuance of trial to retain an “expert witness to testify on the defendant’s behalf.”
Secondly, the case at bar is distinguishable from Hines because our Supreme Court did not interpret the relevant subsection at issue, K.S.A. Supp. 22-3402(1), which specifically relates to trial delays attributable to “the application or fault of the defendant.” To the contrary, our Supreme Court observed in Hines that a “substantial portion” of the delay in bringing Hines to trial “was based upon a court-ordered continuance under K.S.A. 22-3402(3).” 269 Kan. at 702, 7 P.3d 1237. This delay of almost 3 months was occasioned because “[o]n the first trial date of January 25, 1999, the State was granted a continuance under K.S.A. 22-3402(3)(c) to obtain material evidence.” 269 Kan. at 703, 7 P.3d 1237. Significantly, subsection (3) contained the following language that is not found in subsection (1): “Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date.” (Emphasis added.)
In summary, Hines addressed a factual and legal scenario wherein the State (not the defendant) was granted a continuance of trial based upon an entirely different statutory subsection (which contains language specifically referencing “the original trial date” not found in relevant subsection [1] of the speedy trial statute). Those are not the facts or the law relevant here, and the same could be said for State v. White, 275 Kan. 580, 67 P.3d 138 (2003) (“We hold that the 90-day period under K.S.A. 22-3402 [3][c] is counted from the date of the trial setting, not from the date on which the motion was granted.” [Emphasis added.]).
Considering these authorities and facts of the present case, several reasons compel our conclusion that Brown’s right to a speedy trial was not violated. First, the statutory language in K.S.A. 22-3402(1) refers to delays attributable to “the application or fault” of the defendant while K.S.A. 22-3402(3)(c) refers to continuances for specific reasons and specific time periods “from the original trial date.” Accordingly, there is a reasonable basis to conclude that the Kansas Legislature did not intend delays attributable to different causes to be counted in the same manner. Second, the Supreme Court has consistently ruled, in a variety of factual contexts, that delay occasioned by a defendant’s application for a continuance under K.S.A. 22-3402(1) is attributable to the defendant and, therefore, excludable when counting time for statutory speedy trial purposes. Third, there is no explicit language in Hines, White, or the more recent case of State v. Davis, 277 Kan. 231, 233-34, 83 P.3d 182 (2004), that intimates, let alone instructs that our Supreme Court’s counting of days in
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interpreting subsection (3)(c) applies to subsection (1) of the speedy trial statute.
In overruling Brown’s motion for discharge, the trial court stated: “The initial continuance was at the behest of defendant. Because the continuance was sought by defendant it seems logical that the time chargeable to defendant should be from the time his motion was granted (August 1, 2003) to the continued trial date (October 27, 2003).” We agree.
Where a defendant claims that his or her statutory right to a speedy trial under K.S.A. 22-3402(1) has been violated, any delay caused by the judge granting the defendant’s motion to continue the jury trial is the result of the application of the defendant. Pursuant to K.S.A. 22-3402(1), the delay from the date the judge granted Brown’s motion for continuance of trial until the rescheduled trial date was chargeable against the defendant for speedy trial purposes. As a result, we hold that Brown’s right to a speedy trial pursuant to K.S.A. 22-3402(1) was not violated.
Challenge for Cause
On appeal, Brown contends the district court committed reversible error when it overruled his objection and refused to strike a prospective juror for cause. Brown did not exercise a peremptory challenge to remove the prospective juror.
Our standard of review is well settled. A trial judge is in a better position than an appellate court to view the demeanor of prospective jurors as they are questioned. State v. Manning, 270 Kan. 674, 691, 19 P.3d 84 (2001). As a result, “[a] trial judge’s ruling on a challenge for cause will not be disturbed unless it is clearly erroneous or an abuse of discretion is shown. [Citation omitted.]” State v. Doyle, 272 Kan. 1157, 1166, 38 P.3d 650 (2002). Moreover, the failure to excuse a prospective juror for cause is not a ground for reversal unless the defendant was prejudiced as a result. State v. Heath, 264 Kan. 557, Syl. ¶ 17, 957 P.2d 449 (1998).
During voir dire, the trial court asked the jury panel members if they had any personal knowledge of the alleged crime or personal relationship with any of the parties. A potential juror, J.F., responded:
“[J.F.]: When the defendant was being held in the local jail the sheriff called me to counsel him because he wasn’t eating. And I spent some time with him in that situation.
“THE COURT: Okay. Was there any discussion of the facts of the case?
“[J.F.]: Yes, sir.
“THE COURT: All right. Well, because of that personal relationship, I think that would preclude you from serving, unless you felt you could put that aside and serve.
“[J.F.]: I don’t think it would necessarily affect me. But I think the Court should be aware of that or the attorneys in charge be aware of that.
“THE COURT: What your responsibility would be would be to set that aside. That wouldn’t be proper discussion in the jury room.
“[J.F.]: No.
“THE COURT: And you would decide it based solely on the evidence presented here today?
“[J.F.]: That would be my responsibility, yes.
“THE COURT: And also just going a little bit further, the defendant has no responsibility, no obligation to testify. And if he chose not to testify the jury cannot, by reason of that, draw an inference that he had something to hide or that he should have gotten up and told the story. The burden is solely on the state to prove that. So again, if there was anything in that regard, it would be — you understand that would not be —
“[J.F.]: Certainly. I — whatever he shared with me there was between him and my role as pastor. It wouldn’t — my thinking anyway — affect my judgment of the evidence.
“THE COURT: All right. And you do — and just so it’s clear, you would be — and all the jurors would be — sitting in judgment in this case. In other words, they would have to make a judgment
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whether the defendant was guilty or not guilty.
“[J.F.]: Correct.”
In response to questioning by the prosecution J.F. indicated, “As I stated to Judge earlier, I was called to the Washington County Detention Center to do some counseling with the defendant for — when he was first arrested.”
Finally, during defense counsel’s questioning of the jury panel, J.F. was again questioned:
“MR. HICKMAN: I don’t see any hands. And [J.F.], the — if I understood you correctly, you had counseled Mr. Brown sometime shortly after this incident occurred. Is that correct?
“[J.F.]: Yes, sir.
“MR. HICKMAN: All right. And I believed you said — without going into any actual details — that you — he had discussed with you some facts of the case; is that correct?
“[J.F.]: From his perspective, yes.
“MR. HICKMAN: Okay. Now [J.F.], if it came about that Mr. Brown did not testify today or tomorrow or did not testify at the trial, would you be able to set aside, to ignore the information that you learned from him in your deliberations and in reaching a verdict here today?
“[J.F.]: I believe so. I think what he said in that situation was said under the duress of his own mourning, so — kind of a different situation than what we have here.
“MR. HICKMAN: Your Honor, I’m going to ask — in light of the fact that he’s received personal — has personal knowledge, that he has talked with the defendant prior to this, that he has knowledge of the facts of the case from the defendant himself, that I would ask the Court to excuse [J.F.] for cause.
“THE COURT: This prospective juror has previously stated clearly that he can separate the two and could decide the case in an objective manner. The motion to disqualify is denied.”
After passing the remainder of the jury panel for cause, the State and Brown each exercised eight peremptory challenges. Neither party exercised a peremptory challenge to strike J.F. and, as a result, he served on the jury.
At trial, Brown asked the court to strike J.F. because “he has knowledge of the facts of the case from the defendant himself.” In his motion for a new trial, Brown simply argued the juror should have been dismissed for cause.
On appeal, Brown now argues the court erred in refusing to strike J.F. under two subsections of K.S.A. 22-3410. First, he argues the juror should have been dismissed under subsection (2)(g) which allows a juror to be challenged for cause if he or she was “a witness to the act or acts alleged to constitute the crime.” K.S.A. 22-3410(2)(g). Second, he argues J.F. should have been dismissed under subsection (2)(i) which allows a juror to be challenged for cause when “[h]is state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party.” K.S.A. 22-3410(2)(i).
K.S.A. 22-3410(2)(g) provides that a prospective juror may be challenged for cause if he was “a witness to the act or acts alleged to constitute the crime.” Brown candidly concedes “there is no indication [in] the record that [J.F.] was present at the scene on April 15, 2003 when Michael Brown was involved in the automobile accident that is central to this case.” Brown presents the novel argument, however, that “as a person who had information regarding the substantive facts of the case, information that came directly from one of the parties in the case, [J.F.] could have been considered a witness.”
Brown’s argument runs afoul of the plain and ordinary meaning of the words in this statutory section. “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed. . . . [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Moreover, in the interpretation of statutes, ordinary words are to be given their ordinary meaning. GT, Kansas,
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L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
K.S.A. 22-3410(2)(g) only applies to eyewitnesses — witnesses to the act or acts that constitute the criminal conduct for which the defendant is on trial. In the present case there was no evidence that J.F. observed Brown at or about the time of the collision. Given that the provisions of K.S.A. 22-3410(2)(g) were inapplicable to J.F.’s knowledge of certain facts relating to Brown, the trial court did not abuse its discretion in failing to dismiss J.F. pursuant to this subsection.
Brown further contends the trial court erred in not striking J.F. from the jury panel pursuant to K.S.A. 22-3410(2)(i), which allows a juror to be challenged for cause when “[h]is state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party.” See State v. Doyle, 272 Kan. 1157, 1166, 38 P.3d 650 (2002). In particular, Brown “simply asserts that, despite [J.F.]’s protestations to the contrary, his state of mind was indelibly affected by his jailhouse conversation with Mr. Brown so as to create a real doubt that [J.F.] could act impartially and without prejudice to Mr. Brown’s substantial rights.”
Brown’s speculative claim is without any factual basis and directly contradicted by the record testimony wherein J.F. repeatedly assured the trial court that he understood it would be improper to consider the pretrial conversation he had with Brown, and that it would be his responsibility to only consider the evidence presented in court. As a result, there was a solid factual basis for the trial court’s finding that J.F. “has previously stated clearly that he can separate the two and could decide the case in an objective manner.”
There are no facts in the record to support a conclusion that J.F. exhibited any partiality or prejudice which disqualified him from jury service. Moreover, J.F.’s sworn testimony was to the contrary. The trial court did not abuse its discretion in failing to dismiss J.F. pursuant to K.S.A. 22-3410(2)(i).
Brown next alleges the trial court erred in not conducting its voir dire examination of J.F. outside the presence of the jury. Brown’s counsel, however, did not object to the voir dire conducted by the trial court or suggest that in camera questioning of J.F. was necessary.
A party may not raise an issue on appeal where no contemporaneous objection was made and where the trial court did not have an opportunity to rule. State v. Flynn, 274 Kan. 473, 502, 55 P.3d 324 (2002). The trial court never had an opportunity to consider the validity of this argument and, therefore, potentially correct any errors. Moreover, as a general rule, issues not raised before the trial court may not be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). Finally, Brown has provided only scant, nonspecific case law precedent to support this claim of error. For all these reasons this claim is without merit.
We note, sua sponte, that Brown did not challenge J.F. for cause during voir dire pursuant to K.S.A. 22-3410(2)(h), or raise the applicability of this particular subsection on appeal. This subsection allows a juror to be challenged for cause when “[h]e occupies a fiduciary relationship to the defendant or a person alleged to have been injured by the crime or the person on whose complaint the prosecution was instituted.” K.S.A. 22-3410(2)(h). No relevant case law has been found which defines a fiduciary relationship as contemplated by K.S.A. 22-3410(2)(h). Kansas appellate courts have discussed the meaning of a “fiduciary relationship” in a variety of contexts, however, resulting in the term being defined by the Kansas Judicial Council as “any relationship of blood, business, friendship or association in which one of the parties places special trust and confidence in the other.” PIK Civ.3d 125.01.
As noted earlier, we do not generally consider matters for which no specific contemporaneous objection is made at trial. Although Brown objected in a general fashion to J.F.’s service on the jury, “a contemporaneous objection must be made and it should be specific enough that the trial judge can rule intelligently upon the objection. . . .”
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City of Overland Park v. Cunningham, 253 Kan. 765, 772, 861 P.2d 1316 (1993).
Brown’s failure to state this specific ground for challenging J.F. at the trial level precludes our review because, as a result of this failure, neither counsel nor the trial court questioned J.F. to determine whether his pretrial counseling of Brown established a fiduciary relationship at the time of the encounter and, if so, whether J.F. considered that relationship to exist at the time of trial. Finally, an issue not briefed by the appellant is deemed waived or abandoned. State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004). For all of these reasons this particular issue is not properly before us for consideration.
The failure to excuse a juror for cause is not a ground for reversal unless, as a result, the defendant was prejudiced. State v. Heath, 264 Kan. 557, Syl. ¶ 17, 957 P.2d 449 (1998). Although we have found no abuse of discretion in the trial court’s ruling, we address Brown’s claim that this ruling resulted in prejudice.
Brown speculates: “It is entirely possible in this case that Mr. Brown, who testified at trial, might have wanted to call [J.F.] as a witness to corroborate his own trial testimony.” There is nothing in the record to support this conjecture. If true, Brown’s counsel was obliged to object upon that specific basis during the voir dire of J.F. City of Overland Park v. Cunningham, 253 Kan. 765, 772, 861 P.2d 1316 (1993).
Brown next argues, for the first time on appeal, that the trial court’s refusal to strike J.F. from the jury panel violated Brown’s constitutional right to remain silent. Brown theorizes that “[i]f he asserted his right to refuse to testify, the other jurors would naturally wonder: Mr. Brown talked about the facts of the case to [J.F.] in jail; why won’t he testify at trial?” Brown provides no legal or factual basis to support this allegation of prejudice. As a result, we find it to be without merit.
Finally, in the context of Brown’s claims of prejudice, we note he did not use one of his eight peremptory challenges to remove J.F. from the jury panel. This factual scenario has been considered before by our Supreme Court.
In State v. Mayberry, 248 Kan. 369, 807 P.2d 86 (1991), our Supreme Court reviewed a case where four prospective jurors were unsuccessfully challenged for cause and actually served on the jury. These individuals were challenged because they had information that the defendant had previously been convicted of murder. The court found the prospective jurors “clearly expressed their ability to disregard outside information. In addition, any error committed by the trial court in failing to discharge the challenged jurors could easily have been cured by Mayberry’s use of peremptory challenges.” 248 Kan. at 382, 807 P.2d 86.
In State v. Dixon, 248 Kan. 776, 811 P.2d 1153 (1991), our Supreme Court found the trial court’s refusal to strike a juror for cause “questionable” and observed:
“The record does not indicate why the defendant failed to utilize a peremptory challenge as suggested by the trial court to strike Mrs. Moore from the panel. Dixon makes no argument that use of a peremptory challenge on Mrs. Moore would have forced him to accept other objectionable jurors. [Citation omitted.] Under these circumstances, we find no reversible error in the trial court’s ruling.” 248 Kan. at 790-91, 811 P.2d 1153.
See State v. Verge, 272 Kan. 501, 508-11, 34 P.3d 449 (2001).
Brown attempts to distinguish this case precedent as being factually dissimilar to the present case. We disagree. In Mayberry, Dixon, and the present case, the defendants’ motions to challenge for cause prospective jurors were overruled, the defendants failed to peremptorily challenge the prospective jurors and, as a result, they served as jurors.
For the first time on appeal, Brown asserts “the use of a peremptory strike to remove [J.F.] would have forced him to accept other objectionable jurors.” Although the record is devoid of defense counsel’s rationale for exercising peremptory challenges at trial, in his brief Brown identifies five prospective jurors who were peremptorily challenged by Brown’s counsel. In his brief,
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Brown cites to answers given by these five individuals during voir dire wherein they “to some extent, expressed their belief that they could be impartial, but they also expressed some form of bias.”
Assuming arguendo that Brown had valid reasons to peremptorily challenge these five individuals, Brown was permitted to exercise eight peremptory challenges. Brown candidly admits that the three remaining peremptorily-challenged prospective jurors “were not individually questioned during voir dire and made no statements.” As a result, Brown has failed to make a credible case that the objectionable nature of all eight prospective jurors compelled his counsel not to peremptorily challenge J.F. By not exercising a peremptory challenge against J.F. and not providing a record as to the rationale why he was compelled to exercise the eight peremptory challenges available to him, Brown has failed to make a sufficient case for prejudice which would require reversal of his convictions.
Finally, Brown’s claim of prejudice is compromised by the fact that he had actual first-hand knowledge of the content of the pretrial conversation between him and J.F. Unlike the typical situation where defense counsel can only assess a prospective juror’s fairness and impartiality based upon answers to voir dire questions, in the present case Brown participated in the conversation with J.F. and, as a result, should have been fully informed as to what he said, what J.F. said, and whether that encounter would favorably or adversely affect Brown’s defense. Given these special circumstances, Brown’s decision to not peremptorily challenge J.F. implies that Brown did not consider J.F.’s service on the jury to be prejudicial to his defense.
While “[i]t would have been safer” for the trial court to excuse J.F. from jury service on this particular case, given Brown’s claims and the record before us, we are unable to find an abuse of discretion by the trial court or prejudice to Brown’s defense. See Dixon, 248 Kan. at 790, 811 P.2d 1153.
Lesser Included Offense Instruction
Brown was charged with involuntary manslaughter while driving under the influence of alcohol and drugs under two alternative theories: his blood alcohol level was .08 or more, or he was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle, in violation of K.S.A. 2004 Supp. 21-3442. Brown was also charged with driving under the influence under two alternative theories: his blood alcohol level was .08 or more (K.S.A.2004 Supp. 8-1567[a][2]), or he was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle, K.S.A.2004 Supp. 8-1567(a)(3).
At trial, the jury was instructed regarding the alternative theories of involuntary manslaughter while driving under the influence but only instructed regarding driving under the influence with a blood alcohol level of .08 or more. Brown was convicted under both alternative theories of involuntary manslaughter while driving under the influence of alcohol, and convicted of driving under the influence of alcohol.
On appeal, Brown argues the trial court erred in failing to instruct the jury on driving under the influence of alcohol as a lesser included offense of involuntary manslaughter while driving under the influence of alcohol. At trial, Brown did not request a lesser included offense instruction.
Brown’s failure to request this lesser included offense instruction dictates our standard of review:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous. The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” State v. Boone, 277 Kan. 208, Syl. ¶ 8, 83 P.3d 195 (2004).
K.S.A.2004 Supp. 21-3107(2)(b) defines a lesser included crime as: “a crime where all
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elements of the lesser crime are identical to some of the elements of the crime charged.” In order to resolve this issue, it is necessary to determine if all the elements of driving under the influence of alcohol are identical to some of the elements of involuntary manslaughter while driving under the influence of alcohol.
K.S.A.2004 Supp. 8-1567(a) provides: “No person shall operate or attempt to operate any vehicle within this state while: (2) the alcohol concentration in the person’s blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more.”
With regard to the driving under the influence of alcohol charge, the jury was instructed in Instruction No. 13 that four claims or elements must be proven:
“1. That the defendant drove or attempted to drive a vehicle;
“2. That the defendant, while driving or attempting to drive, had an alcohol concentration in his blood or breath of .08 or more as measured within two hours of the time of driving or attempting to drive the vehicle;
“3. That the alcohol concentration in the defendant’s blood or breath was a result of alcohol consumed before or while driving or attempting to drive a vehicle; and,
“4. That this act occurred on or about the 15th day of April, 2003, in Washington County, Kansas.”
K.S.A.2004 Supp. 21-3442 defines involuntary manslaughter while driving under the influence as: “the unintentional killing of a human being committed in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567 and amendments thereto.”
In the present case, the jury was instructed in Instruction No. 9 that four claims or elements must be proven by the State in order to convict Brown of involuntary manslaughter while driving under the influence of alcohol:
“To establish this charge, each of the following claims must be proved:
“1. That the defendant unintentionally killed Ruth Brown;
“2. That it was done in the commission of or while attempting to commit the act of operating or attempting to operate a vehicle while having an alcohol concentration in his blood of .08 or more as measured within two hours of the time of operating or attempting to operate the vehicle;
“3. That the alcohol concentration in the defendant’s blood or breath was a result of alcohol consumed before or while driving or attempting to drive a vehicle; and,
“4. That this act occurred on or about the 15th day of April, 2003, in Washington County, Kansas.”
Alternatively, the jury was instructed in Instruction No. 10 that claims (1), (3), and (4) above must be proven, in addition to the claim that the unintentional killing of Ruth Brown “was done in the commission of or while attempting to commit the act of operating or attempting to operate a vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle.”
As is readily apparent, all four elements of the offense of driving under the influence of alcohol as set forth in Instruction No. 13 are identical to some of the elements of involuntary manslaughter while driving under the influence of alcohol as set forth in Instruction No. 9. As a result, we hold that pursuant to K.S.A.2004 Supp. 21-3107(2)(b), driving under the influence of alcohol as provided in K.S.A.2004 Supp. 8-1567(a)(2) is a lesser included offense of involuntary manslaughter while driving under the influence of alcohol because all of the elements of K.S.A.2004 Supp. 8-1567(a)(2) are identical to some of the elements of K.S.A.2004 Supp. 21-3442.
The State acknowledges that driving under the influence of alcohol is a lesser included offense of involuntary manslaughter while driving under the influence of alcohol; however, it argues there is no real possibility the jury would have returned a different verdict absent the instructional error. To resolve this issue, the erroneous
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instructions must be compared to the instructions the jury would have received had it been correctly instructed and determine if there was a real possibility the jury’s verdict was affected by the error. State v. Winters, 276 Kan. 34, 39, 72 P.3d 564 (2003).
The trial court’s instructions to the jury indicated the involuntary manslaughter charges were charged in the alternative and constituted one crime. With regard to all crimes charged, the trial court instructed:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged.”
This instruction was a verbatim recitation of PIK Crim.3d 68.07.
The jury should have been advised of the lesser included offense, instructed that it could find the defendant guilty of the charged offense, or the lesser included offense, or not guilty, and then instructed: “When there is a reasonable doubt as to which of two or more offenses defendant is guilty, [defendant] may be convicted of the lesser offense only.” PIK Crim.3d 68.09.
A similar situation arose in State v. Winters, where the trial court instructed the jury to consider both a severity level 7 aggravated battery and a severity level 4 aggravated battery. The court failed to instruct the jury that the severity level 7 aggravated battery was a lesser included offense of the severity level 4 aggravated battery. The defendant did not object to these instructions or the failure to give a lesser included offense instruction. The Winters trial court, like the trial court in this case, gave the multiple counts verdict instruction.
The Winters court found the instructions to be error, although not clear error. 276 Kan. at 41, 72 P.3d 564. The court reasoned:
“The jury was instructed to consider the crimes separately but in no particular order. We find no basis to conclude that discussing one of the crimes before the other would change the verdict in this case. The jury was instructed to consider the crimes separately and distinctly. Consequently, the verdict on one charge would not affect the verdict on the other charge.” 276 Kan. at 40-41, 72 P.3d 564.
Brown speculates that “[t]he very real possibility that the jury could have found Mr. Brown guilty of DUI but not guilty of involuntary manslaughter is evidenced by the fact that the court chose to instruct the jury on the proximate cause of Ruth Brown’s death.” In fact, the court chose to instruct the jury regarding the issue of the proximate cause of Ruth Brown’s death because defense counsel requested this instruction. Regardless of the absence of a lesser included offense instruction, the jury was instructed that each charge was to be considered separately, uninfluenced by the jury’s decision as to other charges.
As in Winters, the jury in this case considered each charge separately and found Brown guilty of both involuntary manslaughter while under the influence of alcohol and driving under the influence of alcohol. We find no basis to conclude that the failure to give a lesser included offense instruction had any effect on any of the verdicts. Although the jury should have received the lesser included offense instruction, we hold this error was not clear error requiring reversal.
Multiplicitous Convictions
Brown contends the charges of involuntary manslaughter while driving under the influence of alcohol and driving under the influence of alcohol are multiplicitous under K.S.A.2004 Supp. 21-3107(2)(b). As a result, Brown contends his involuntary manslaughter conviction should be reversed and the sentence vacated.
The State concedes these charges are multiplicitous. The State argues, however, that only the driving under the influence of alcohol conviction should be reversed and that sentence vacated.
Brown failed to raise this issue before the trial court. Notwithstanding Brown’s failure, a claim of multiplicity may be raised for the first time on appeal when necessary to serve the ends of justice and to
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prevent a denial of fundamental rights. State v. Groves, 278 Kan. 302, 303-04, 95 P.3d 95 (2004). Whether charges are multiplicitous is a question of law, and an appellate court’s review is unlimited. State v. Kessler, 276 Kan. 202, 204, 73 P.3d 761 (2003). We consider this issue because the facts are undisputed, the question of law is clear, and Brown’s fundamental constitutional and statutory rights are implicated.
“Multiplicity is the charging of two or more counts in a complaint where only a single wrongful act is involved. [Citation omitted.]” State v. Stevens, 278 Kan. 441, 446, 101 P.3d 1190 (2004). “The test to determine whether the charges in a complaint or information are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous.” 278 Kan. at 447, 101 P.3d 1190.
As determined earlier, K.S.A.2004 Supp. 21-3107(2)(b), driving under the influence of alcohol is a lesser included offense of involuntary manslaughter while driving under the influence of alcohol because all of the elements of K.S.A.2004 Supp. 8-1567(a)(2) are identical to some of the elements of K.S.A.2004 Supp. 21-3442. Similarly, to prove the offense of involuntary manslaughter while under the influence of alcohol requires proof of every element of driving while under the influence of alcohol. As a result, these two charges are multiplicitous.
In cases of multiplicitous charges resulting in convictions, our Supreme Court has determined a defendant should be sentenced only on the more severe offense. Winters, 276 Kan. at 43, 72 P.3d 564; State v. Turbeville, 235 Kan. 993, 995, 686 P.2d 138 (1984); State v. Garnes, 229 Kan. 368, 372-74, 624 P.2d 448 (1981). Having determined that the charges are multiplicitous, we reverse Brown’s conviction of driving under the influence of alcohol and vacate the sentence.
Sufficiency of Evidence
Brown contends there was insufficient evidence to convict him of involuntary manslaughter while driving under the influence of alcohol because the State failed to prove Brown’s driving under the influence of alcohol was the proximate cause of Ruth Brown’s death. Brown asserts Ruth died from a tear in her aorta because of a lack of proper treatment by Dr. Hodgson at Washington County Hospital.
Our standard of review is well known:
“When a defendant challenges the sufficiency of evidence, this court’s standard of review is whether, after review of all of the evidence viewed in the light most favorable to the State, the appellate court is convinced that a rational jury could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004).
Involuntary manslaughter while driving under the influence of alcohol or drugs is defined as: “the unintentional killing of a human being committed in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567 [driving under the influence of alcohol or drugs] and amendments thereto.” K.S.A.2004 Supp. 21-3442. There was substantial evidence that Brown was driving the vehicle when the accident occurred and that his blood test revealed a blood alcohol level in excess of the legal limit.
On appeal, Brown concedes that “there was evidence that Ruth Brown was injured as a result of the automobile accident.” Brown contends, however, that “[i]f prompt and correct treatment of Ruth Brown would have prevented her death, . . . then the state has failed to prove that the actions of Mr. Brown were the proximate cause of Ruth Brown’s death.”
Without addressing the legal propriety of such a defense in this case, Brown’s argument is unavailing because a review of the record convinces us there was no competent evidence that Ruth received negligent medical care or that if Ruth had received faster or better treatment she would have survived.
Ruth Brown was treated at Washington County Hospital by a local physician, Dr. David Hodgson. He testified Ruth was conscious and responded to his questions about her injuries in the emergency room. She
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told him she was uncomfortable on her back and her upper abdomen hurt. Ruth smelled strongly of alcohol and admitted to drinking about six beers over a period of a couple hours.
Attempting to diagnose the cause of Ruth’s abdominal pain, numerous x-rays were taken of her spine, chest, and abdominal region. Throughout the process Ruth was uncooperative, resisted examinations, and frustrated medical treatment. Dr. Hodgson examined Ruth and her x-rays and found no evidence of external or internal bleeding, fractures, dislocations, or heart or lung trauma. He admitted Ruth to the hospital for continued observation and care.
At 5:45 a.m. the following morning, nurses advised Dr. Hodgson that Ruth had been awake, was fairly coherent, but was experiencing some discomfort. At 7 a.m., Dr. Hodgson conducted a physical examination of Ruth which revealed no internal bleeding, although he noted Ruth was sleepy. Dr. Hodgson reviewed all the x-rays again without discovering anything of medical significance.
Dr. Hodgson checked on Ruth at 8 a.m. and she appeared sleepy but stable. By 9 a.m., Ruth was no longer moving or responding verbally. Dr. Hodgson and a nurse practitioner reexamined Ruth, took more x-rays, and decided there had been enough change in her neurological status to transfer her to a major trauma center. Ruth was airlifted from the Washington County Hospital around 11 a.m. and arrived at Bryan West Hospital in Lincoln, Nebraska, about 45 minutes later.
Dr. Ronald Jex, a cardiothoracic surgeon, performed a transesophageal echocardiogram to assess Ruth’s heart and blood vessels. Ruth was acidotic, meaning her blood chemistry was abnormal because of poor blood flow to parts of her body for at least 4-6 hours. The evaluations supported a diagnosis of an aortic injury. Dr. Jex determined that Ruth’s prognosis was poor and even with surgery she might not survive.
Ruth was taken to surgery about 4:00 or 4:30 p.m. Doctors repaired a tear to her aorta and restored normal blood flow. During the procedure Ruth went into cardiac arrest but was revived. Unfortunately, Ruth’s condition continued to deteriorate until she died at approximately 9 p.m. on April 16, 2003.
At trial, Dr. Jex testified “without a doubt” that Ruth’s injuries were consistent with a high-impact accident. In his opinion, the ultimate cause of death was ischemia and resulting heart failure. He stated the injury took time to develop to the point of cutting off blood flow to the organs. This type of injury is not recognizable until the body starts showing symptoms, and it takes time for the symptoms to manifest. Dr. Jex testified Ruth’s condition was rare and that 90 percent of people who receive aortic injuries from high-impact accidents die at the scene.
At trial, neither Dr. Hodgson or Dr. Jex testified regarding any negligent medical treatment by Dr. Hodgson or that, as Brown alleges, “prompt and correct treatment of Ruth Brown would have prevented her death.” Significantly, in his case in chief, Brown also failed to present any expert testimony in support of this defense.
We note that at sentencing the trial judge provided his first-hand assessment of Brown’s defense and the sufficiency of evidence of Brown’s guilt:
“From a legal standpoint, as I mentioned before, there was overwhelming evidence of guilt. There was nothing-the treating physicians, in my view, gave excellent care, far above the minimum requirement. Dr. Hodgson followed this case closely and was personally in attendance much of the time and this was an unusual circumstance. Often in a trauma of this degree the victim patient would have died at the scene and all reasonable care and diagnostic tools were used.”
Brown’s defense that Dr. Hodgson was negligent and his failure to diagnose the injury caused Brown’s wife’s death from an otherwise treatable injury was presented to the jury. At the request of the defense, the jury was instructed on proximate cause. Brown’s counsel argued his theory in closing argument. After considering the testimony of Dr. Hodgson and Dr. Jex, the jury found Brown’s act of driving under the influence of
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alcohol caused his wife’s death. There was no factual basis for this defense in the record, and we are convinced after review of all of the evidence, viewed in the light most favorable to the State, that a rational jury could have found the defendant guilty beyond a reasonable doubt.
Sentencing
Brown contends the trial court erred in applying the enhanced criminal history scoring provisions of K.S.A.2002 Supp. 21-4711(c)(2) and sentencing him to 162 months in prison upon his conviction for involuntary manslaughter while driving under the influence of alcohol. Brown’s sentence was lengthened as a result of having two prior driving under the influence of alcohol convictions which, pursuant to the trial court’s understanding of K.S.A.2002 Supp. 21-4711(c)(2), counted as person felonies for purposes of calculating Brown’s criminal history.
Resolution of this issue requires interpretation of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., which is a question of law; therefore, this court’s review is unlimited. See State v. Davis, 275 Kan. 107, 124, 61 P.3d 701 (2003).
At the outset, the State objects to consideration of this issue for the first time on appeal. The State claims Brown failed to object to his enhanced criminal history category of B and, consequently, may not complain on appeal of an illegal sentence based upon that score. Our Supreme Court has established precedent for granting appellate review of criminal history errors in certain instances despite defense counsel’s stipulation or failure to make a proper objection. See State v. Vandervort, 276 Kan. 164, 176-77, 72 P.3d 925 (2003).
In the present case Brown was sentenced on January 9, 2004. The Kansas Supreme Court filed its dispositive opinion in State v. Manbeck, 277 Kan. 224, 83 P.3d 190 (2004), on January 30, 2004. We consider Brown’s claim of error because the question of law is clear, the facts are undisputed, and our Supreme Court has recognized the authority of appellate courts to review the issue of an illegal sentence for the first time on appeal.
K.S.A.2002 Supp. 21-4711(c)(2), the law in effect at the time of Brown’s offense, applied enhanced scoring to individuals convicted of involuntary manslaughter while driving under the influence of both alcohol and drugs. “Criminal statutes and penalties in effect at the time of a criminal offense are controlling. [Citation omitted.]” State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004). Brown argues that K.S.A.2002 Supp. 21-4711(c)(2) was improperly applied by the trial court because he was convicted of involuntary manslaughter while driving only under the influence of alcohol, not a combination of alcohol and drugs. This statute has since been amended. See L.2004, ch. 30, Sec. 1.
Brown cites to Manbeck, for support. In Manbeck, the Kansas Supreme Court held the special sentencing provision of K.S.A.2002 Supp. 21-4711(c)(2) only applies to convictions for involuntary manslaughter while driving under the influence of both alcohol and drugs. 277 Kan. at 226-29, 83 P.3d 190. The State concurs that Manbeck’s interpretation of K.S.A.2002 Supp. 21-4711(c)(2) is applicable to the present case. We agree.
Given the statutory language of K.S.A.2002 Supp. 21-4711(c)(2), as interpreted by the Supreme Court in the Manbeck decision, we hold that Brown’s two prior driving under the influence of alcohol convictions were improperly scored as two person felonies which resulted in an illegal sentence for involuntary manslaughter while driving under the influence of alcohol. As a result, that sentence is vacated and we remand for resentencing.
Brown’s conviction of involuntary manslaughter while driving under the influence of alcohol is affirmed. The sentence is vacated and the case remanded for resentencing. Brown’s conviction of driving under the influence of alcohol is reversed and the sentence vacated.
GREENE, J., dissenting:
I respectfully dissent because I believe the majority’s construction and application of K.S.A. 22-3402 is inconsistent with if not contrary to Kansas authorities and does not seem logical to me. In summary, I would
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not count against the defendant for speedy trial purposes the days between the grant of defendant’s motion for continuance of trial and the original trial date, because this time frame did not “delay” the trial, and certainly was not the “result of [defendant's] application or fault of the defendant.”
For purposes of Brown’s speedy trial issue, the central question in this appeal is whether the time frame between the district court’s grant of his motion for continuance, August 1, 2003, and the original trial date of August 20, 2003, should be counted against him in determining whether he was brought to trial within the 90 days required by K.S.A. 22-3402(1). The majority has answered this question in the affirmative; I would answer negatively, counting this time frame against the State. The result of my interpretation and application is that, after charging to Brown only the time between the original and the continued trial dates, Brown was brought to trial after 101 days, requiring discharge from further liability under the statute.
Most of the Kansas authorities cited by the majority do not address these circumstances. In State v. Southard, 261 Kan. 744, 933 P.2d 730 (1997), and in City of Dodge City v. Downing, 257 Kan. 561, 894 P.2d 206 (1995), the issue was time attributable to defendant in connection with a motion to suppress. In State v. Crane, 260 Kan. 208, 918 P.2d 1256 (1996), the issue was time attributable to defendant in connection with a motion for independent mental examination. In State v. Bafford, 255 Kan. 888, 879 P.2d 613 (1994), the principal issue was time attributable to defendant in connection with a motion for psychiatric evaluation, where defendant disclaims understanding and consent to delay attributable to his counsel. None of these cases specifically address the manner of counting or attributing days for speedy trial purposes where the defendant’s motion to continue trial, without associated motion delay, is ruled upon prior to the original trial date. (Although the Bafford decision includes a general counting of attributable days, and does not count against the State a 4-day time period between grant of motion and the original trial date, this is no reliable or controlling ruling because the 4-day period was inconsequential to the 90-day period.)
The more instructive if not controlling Kansas decision is State v. Hines, 269 Kan. 698, 7 P.3d 1237 (2000), where our Supreme Court construed and applied a parallel subsection of the statute, K.S.A. 22-3402(3)(c) (now [5][c]). In counting days attributable to a continuance requested by defense counsel (over the strenuous objection of the defendant) on April 16, 1999, the court did not include the period of days between the date of request/grant of a continuance and the date of the then pending trial date of April 19, 1999. In so doing, the court expressly noted that “[t]his time is counted under K.S.A. 22-3402(1).” 269 Kan. at 703, 7 P.3d 1237. Although subsection (3)(c) has language specifically directing that “the original trial date” is the measure for counting days for delay arguably related to a material evidence request by the prosecution, the Supreme Court clearly indicated that 22-3402(1) applied, and the count did not include the period between request/grant of continuance and the pending trial date. With due respect, I am not persuaded by the majority’s attempt to distinguish Hines.
Even more instructive than Hines is the Supreme Court’s decision in State v. White, 275 Kan. 580, 67 P.3d 138 (2003), where the specific subsection at issue was K.S.A. 22-3402(3)(c) (now [5][c]), the precise subsection at issue in Hines. In White the specific issue presented was whether the count of days attributable to a continuance for procurement of material evidence by the State should begin to run from the date the district court rules on the motion for continuance or the date the original trial was to begin. The court concluded that the original trial date was the appropriate measure, stating:
“Although not specifically addressing the issue raised by White, on previous occasions when calculating whether a defendant’s right to speedy trial has been violated, this court has utilized the trial date as the beginning date for counting. See State v. Hines, 269 Kan. 698, 703, 7 P.3d 1237 (2000); State v. Green, 254 Kan. 669, 672, 867 P.2d 366 (1994). Further, in reading the provisions as a whole, the legislative
Page 1054
intent is clear that the trial date is to be the date from which the continuance is calculated.”
In light of both Hines and White, I would argue that the Supreme Court has indicated that the entirety of K.S.A. 22-3402 be construed with consistency as to the use of original trial date as the operative date for counting days attributable to a defendant’s motion for continuance, even though it is ruled upon in advance of said date. Not only does Hines relate subsections (1) and (3)(c) (now[5][c]), the legislature amended the statute in 2004 adding subsection (3) which specifically requires that trial be rescheduled “within 90 days of the original trial deadline.” Repeated express utilization of the original trial date as the operative date indicates a legislative intent to construe the statute with consistency, thus requiring that original trial date be utilized in attributing delay. I simply cannot construe the statute and the applicable case law to support the construction and application endorsed by the majority.
Consider again the express language of the statute: a defendant must be brought to trial within 90 days after arraignment “unless the delay shall happen as a result of the application or fault of the defendant. . . .” If the original trial date was August 20, 2003, how can the majority imply that “delay” occurred prior to that date? Moreover, how can the majority imply that the period between motion/grant of continuance and the original trial date “result” from the defendant’s application or other “fault.” It is clear to me that Brown could not be tried prior to the original trial date; had he not sought a continuance, the entire period would be attributable to the State. The majority, however, concludes that the filing of a continuance not only requires attribution to the defendant of the time between the original and new trial dates, it requires attribution to the defendant of the additional time transpiring prior to the original trial date, counted from the grant of a continuance. This attribution is counterintuitive in that it causes a time period already attributed to the State to magically “jump back” to the defendant for purposes of attribution. Obviously, this period does not result from the application or any other fault of the defendant; it already has been counted against the State, does not “result” from the defendant’s motion, and should remain attributable to the State. With due respect to the majority, this magical “jump back” does not seem logical but rather contrary to a coherent construction of the entirety of K.S.A. 22-3402.
Finally, I believe that it should be apparent that the appropriate methodology for counting days under these circumstances presents a difficult, if not rather esoteric, question. Inasmuch as the right to a speedy trial is rooted not only in Kansas statute, but is also a fundamental right acknowledged in the Kansas and United States Constitutions, I would argue that such difficult or esoteric questions should be resolved in favor of the defendant, not in favor of the State.
I would reverse the district court, holding that Brown was not brought to trial within the period required by K.S.A. 22-3402 and ordering that he be discharged from further liability for the crimes charged.

[774 A.2d 395]
Mark Colvin, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.
Celia Anderson Davis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.
WILNER, Judge.
Petitioner, Glenn Meanor, was convicted in the Circuit Court for Howard County of driving while intoxicated, driving under the influence of alcohol, and failure to obey a traffic control device, for which he was given a suspended jail sentence. Those judgments were affirmed by the Court of Special Appeals. Meanor v. State, 134 Md.App. 72, 758 A.2d 1124 (2000).
We granted certiorari to consider whether (1) petitioner was effectively charged with driving while intoxicated per se, (2) the trial court erred in instructing the jury that petitioner was intoxicated if his blood alcohol content (BAC) was 0.10 or more, and (3) the results of a breath test that he opted to take were admissible in light of the arresting officer’s failure to inform him that, if he refused to take the test, the Motor Vehicle Administration (MVA) could modify an otherwise automatic suspension of his driver’s license and issue him a restrictive license if he participated in the Ignition Interlock System Program. Our responses to these questions, which we shall address in a slightly different order, will lead to a vacation of the Court of Special Appeals judgment.
BACKGROUND
The relevant facts are essentially undisputed. Meanor and a friend, Dixon, spent the evening of February 11, 1999, drinking at a nightclub. When they left the club, they agreed that Meanor had too much to drink and that Dixon should drive Meanor’s car. They had not proceeded far when Dixon was stopped by Officer Mui, who had observed the car weaving between lanes. After failing several field sobriety tests, Dixon was arrested. Mui and Sergeant Christis, a backup officer who arrived at the scene, noted a strong odor of alcohol on Meanor’s breath and the fact that he had glassy eyes and slurred speech. Believing that he, too, was intoxicated, the officers directed him not to drive. They offered to take him to the police station or to a public telephone and advised that they could arrange to have the car towed or he could wait on the shoulder for a ride home. Meanor declined their offer of assistance and said that he would use his cell phone to make the necessary arrangements. Officer Mui transported Dixon to the police station, and Sergeant Christis drove a short distance away and parked in the center median strip so that she could keep Meanor’s vehicle in view.
Some 20 minutes later, Christis observed Meanor pull onto the road and resume his journey. She began following the car, and, when it crossed the white line separating the road from the shoulder, she initiated a traffic stop. When Meanor performed poorly on three field sobriety tests, Christis placed him under arrest and seated him in the back of her police car. She then read him the Advice of Rights from the DR-15 form prepared by MVA regarding his right to take or refuse to take the
[774 A.2d 396]
breathalyzer test mandated by State law. Meanor made no election at that time, and they proceeded to the police station, where he was directed to read for himself the Advice of Rights form. After doing so, he initially refused to take the test but later, upon learning that Dixon had been processed and released, he consented. The test was performed, and the results showed a BAC of 0.13.
Meanor was issued two citations. One, we presume, was for the traffic control violation. On the other, relevant here, Sergeant Christis circled Item 33, charging Meanor with violating “21-902 Driving While Intoxicated & Under Influence Alcohol & Under Influence of Drugs, & Drugs & Alcohol & Controlled Dangerous Substance.” Upon Meanor’s request for a jury trial, the case was transferred from the District Court to the Circuit Court for Howard County. At trial, Meanor said that, after the officers left, he made several calls on his cell phone to arrange a ride but succeeded in reaching only answering machines. While waiting for someone to return his call, the battery in his cell phone went dead, and, fearing for his safety while parked on the side of the road, he decided to proceed to the next exit and find a pay phone.
At the commencement of trial, the State informed the court and Meanor that he was being charged generally under ? 21-902 of the Transportation Article, and it asked that the case proceed under ? 21-902(a) and (b). Meanor then moved, in limine, to exclude the results of the breath test on the ground that he was not properly advised of the consequences of refusing to take the test. Specifically, he pointed out that the advice of rights he was given stated that a refusal to take the test would result in a suspension of his driver’s license for 120 days, if this were a first offense, and that he would be ineligible for a modification of the suspension or the issuance of a restricted license. It did not, he complained, inform him that MVA could modify the suspension if he agreed to participate in the Ignition Interlock System Program authorized under ? 16-404.1 of the Transportation Article. The court denied the motion and, at the appropriate time, the results of the breath test were admitted.
In its instructions to the jury, the court explained the offenses of driving while intoxicated and driving under the influence of alcohol. With respect to the former, it told the jury that a person is intoxicated when the alcohol that he has consumed has substantially impaired normal coordination and, over Meanor’s objection, added this language:
“Now you’ve heard evidence in this case that the Defendant’s breath was tested for the purposes of determining the alcoholic content of the Defendant’s blood. The [e]ffect of such results is as follows. If you find that at the time of testing, the Defendant had point one zero percent or more by weight of alcohol in the blood, the Defendant was intoxicated.”
The prosecutor stressed that point during closing argument and reminded the jury several times that the test results showed a BAC of 0.13. During its deliberations, the jury sent a note asking, “if we agree that the blood alcohol level was point one three, are we required to find the Defendant guilty of driving while intoxicated,” to which the court replied that all elements of the crime must be proved beyond a reasonable doubt and that the jury may review the court’s instructions. As noted, the jury convicted of both driving while intoxicated and driving under the influence of alcohol.
DISCUSSION
The issues raised by Meanor, centering on the challenged jury instruction and the
[774 A.2d 397]
reception into evidence of the BAC test results, can be understood only in the context of statutory changes made over the past decade to the laws relating to drunk driving. We shall need, therefore, to examine those changes in some detail. Indeed, the changes are ongoing. Some of the substance and much of the terminology applicable in this case have been changed by legislation enacted in the 2001 Session of the General Assembly. See 2001 Md. Laws, ch. 5. We shall note those recent changes where pertinent.
The Jury Instruction
(A) Whether Driving While Intoxicated Per Se Is A Separate Offense
At the time relevant to this case, Maryland Code, ? 21-902(a) and (b) of the Transportation Article, provided as follows:
“(a) Driving while intoxicated or intoxicated per se.
(1) A person may not drive or attempt to drive any vehicle while intoxicated.
(2) A person may not drive or attempt to drive any vehicle while the person is intoxicated per se.
(b) Driving while under the influence of alcohol.
A person may not drive or attempt to drive any vehicle while under the influence of alcohol.”
Section 11-127.1 of the Transportation Article defined the term “intoxicated per se” as “having an alcohol concentration at the time of testing of 0.10 or more as
measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.”1
Meanor regards ? 21-902(a)(1) and (2) as creating two separate offenses. Though acknowledging that, by virtue of the definition in ? 11-127.1, evidence of a BAC of 0.10 or more would suffice, on its own, to justify a conviction of driving while intoxicated per se under ? 21-902(a)(2), he urges that such a BAC would not be conclusive with respect to ? 21-902(a)(1)?that it is possible for a person to have a BAC of 0.10 or more and not have his normal coordination substantially impaired by alcohol. Because, in his view, he was never properly charged with a violation of ? 21-902(a)(2), the court’s instruction informing the jury that a BAC of 0.10 or more would render him intoxicated created an impermissible per se test for the ? 21-902(a)(1) offense and was therefore erroneous as a matter of law.
The State’s view is that ? 21-902(a)(1) and (2) are not separate offenses. It contends that there was but one offense of driving (or attempting to drive) while intoxicated, which may be proved either by showing a BAC of 0.10 or more or by other evidence indicating coordination substantially impaired by alcohol. The Court of Special Appeals adopted the State’s view, holding that ? 21-902(a)(2) simply “provide[s] a method of convicting an accused of driving while intoxicated by a reduced `grade of proof.’” Meanor v. State, supra, 134 Md.App. at 81, 758 A.2d at 1129. The
[774 A.2d 398]
legislative history of ? 21-902(a)(2) establishes rather conclusively the fallacy in the State’s position.
Prior to 1995, ? 21-902(a) prohibited a person from driving or attempting to drive a vehicle while intoxicated, and ? 21-902(b) prohibited a person from driving or attempting to drive while under the influence of alcohol. Neither term?intoxicated or under the influence?was legislatively defined, and neither had been judicially defined by us for purposes of ? 21-902. In Clay v. State, 211 Md. 577, 584, 128 A.2d 634, 638 (1957), we defined “under the influence of alcohol,” for purposes of the manslaughter by automobile statute, as “drinking to the extent of probably affecting one’s judgment and discretion or probably affecting one’s nervous system to the extent that there is a failure of normal coordination, although not amounting to intoxication.” (Emphasis added). In Alston v. Forsythe, 226 Md. 121, 132, 172 A.2d 474, 479 (1961), we applied that definition in a civil action for negligence arising out of an automobile accident.
The pattern jury instruction drafted by the Maryland State Bar Association Standing Committee on Pattern Jury Instructions (MPJI-Cr 4:10), which is often used by the trial courts and was used in this case, not only makes clear that the distinction between the two states is one of degree but provides what seems to us a better definition of “under the influence” and a workable and reasonable distinction between that and intoxication. It states:
“The distinction between driving while intoxicated and driving under the influence of alcohol is one of degree. A person is under the influence of alcohol when the alcohol that [he][she] has consumed has impaired normal coordination, although not amounting to intoxication. Another way of saying this is that the person’s abilities have been reduced or weakened by the consumption of alcohol.
Intoxication means more than being under the influence of alcohol. A person is intoxicated when the alcohol that [he][she] has consumed has substantially impaired normal coordination.”
Under the pre-1995 law, evidence regarding the existence of either state came predominantly from the observations of arresting officers or other witnesses regarding the defendant’s appearance and conduct, how well he or she performed on field sobriety tests, and presumptions established by ? 10-307 of the Courts and Judicial Proceedings Article. That section, which was part of the law dealing with chemical tests for BAC, provided that (1) if the test showed a BAC of 0.05 or less, it was to be presumed in a prosecution under ? 21-902 that the person was not driving under the influence of alcohol;
(2) if the test showed a BAC of more than 0.05 but less than 0.07, that fact gave rise to no presumption, one way or the other, of driving under the influence or while intoxicated but could be considered along with other evidence; (3) a BAC test result of 0.07 or more constituted prima facie evidence that the defendant was driving under the influence of alcohol; and (4) a BAC test result of 0.10 or more was prima facie evidence that the defendant was intoxicated.
It was also the case under that regime, pursuant to ? 16-205.1 of the Transportation Article, that MVA was required to suspend a person’s driver’s license for certain periods of time?60 days to 6 months for a first offense, 120 days to one year for a subsequent offense?if the defendant refused to take the test, unless the defendant was required to drive a vehicle in his/her employment, needed a license to attend an alcoholic treatment or prevention program, or because of an unavailability of alternative
[774 A.2d 399]
means of transportation, the lack of a license would severely impair the defendant’s ability to earn a living. In those circumstances, MVA could modify the otherwise mandated suspension. Although MVA could revoke a driver’s license upon the licensee’s conviction for driving while intoxicated or under the influence of alcohol, there was no provision for an administrative sanction based solely on a BAC test result.
In 1988, concerned over the carnage caused by drunk and drugged drivers,2 the General Assembly, by House Joint Resolution 53 (1988), created a Task Force on Drunk and Drugged Driving, for the purpose, among others, of examining methods of increasing the remedies then available for combating drunk and drugged driving and recommending changes in the laws and regulations dealing with that problem. At its first meeting, the Task Force placed at the top of the list of issues to be considered two forms of per se remedies?an administrative per se law that would provide for the suspension of the license of a driver whose BAC exceeded a certain standard, and a criminal per se law that would establish a certain BAC level and make a breath test result in excess of that level “dispositive of guilt.” See TASK FORCE ON DRUNK AND DRUGGED DRIVING MINUTES, September 13,1988, at 1.
Those issues tended to predominate much of the work of the Task Force during the Fall of 1988, in part, perhaps, because of incentives/sanctions from the Federal Government. 23 U.S.C. ? 408 authorized Federal grants to the States for alcohol safety programs provided the State met certain conditions set forth in the statute, one of which was that any person with a BAC of 0.10 or greater when driving a motor vehicle “shall be deemed to be driving while intoxicated.” ? 408(e)(1)(C). Evidence was presented that 44 States and the District of Columbia had enacted a criminal per se law with 0.10 or less as the standard and 23 States had enacted an administrative per se law. Although most of the discussion centered on the administrative per se recommendation and how such a law would be implemented, a question was raised about how a criminal per se law would operate in relation to the existing offenses. Judge Garmer, a member of the Task Force who was then a District Court judge, asked whether, “under an illegal per se law, a person would be charged under both the per se and DWI offense,” and the reply, from the State’s Attorney member of the Task Force, was that “this would be the case.” See TASK FORCE ON DRUNK AND DRUGGED DRIVING MINUTES, October 25, 1988 at 4.
This view?that a criminal per se law would be a new, separate offense that could be charged in addition to the existing driving while intoxicated or driving under the influence offenses?was made crystal clear in the Task Force’s 1988 Interim Report to the General Assembly. Although the Task Force urged the immediate enactment of an administrative per se law and recommended deferring consideration of a criminal per se law until after the antiquated breathalyzer machines then being used were replaced by more modern and reliable equipment,3 it described the criminal per se proposal thusly:
[774 A.2d 400]
“An illegal per se statute would establish a new criminal offense of operating a motor vehicle with an alcohol concentration in the driver’s blood that meets or exceeds a certain statutorily defined limit. It is not necessary under an illegal per se law to prove that a driver was intoxicated or under the influence of alcohol. All that is necessary is to prove that the individual was operating a motor vehicle with more than a certain amount of alcohol in the individual’s blood.
* * *
An illegal per se law would not replace the current prohibitions, but would supplement them. For example, if an individual’s BAC test revealed a BAC level at or above 0.10, the individual could be charged with 2 separate violations; i.e., driving while intoxicated/under the influence, and the separate per se offense. If intoxication or being under the influence cannot be proved, for example, due to insufficient physical and behavioral evidence, the objective result of the BAC test alone, unless successfully challenged (e.g., lack of probable cause, testing error, etc.) would be sufficient to convict the individual of the per se offense.”
1988 INTERIM REPORT OF THE TASK FORCE ON DRUNK AND DRUGGED DRIVING at 15, 16-17 (emphasis added).
In furtherance of the Task Force’s recommendation, the General Assembly enacted an administrative per se law at its next session. See 1989 Md. Laws, ch. 284. Bills to create a criminal per se law failed in the 1993 and 1994 sessions but one finally was enacted in 1995. See 1995 Md. Laws, ch. 498, enacting Senate Bill 256. Both the manner in which the law was drafted and the reports issued by the Senate and House Committees that considered the bill confirm beyond cavil that the new per se offense was intended to be a separate criminal offense and not merely an easier way of proving the existing offenses.
If all that was intended was an easier way of proving intoxication or driving under the influence, as the State posits, the Legislature could simply have added that provision to ? 10-307 of the Courts and Judicial Proceedings Article, which already set forth the evidentiary effects of BAC test results. Indeed, it did amend ? 10-307 in the same bill, but only to conform it to the new offense. It repealed that part of ? 10-307 that made a test result of 0.10 or more “prima facie evidence” that the defendant was driving while intoxicated. Instead of addressing the issue in ? 10-307, the Legislature split ? 21-902(a), which created the offense of driving while intoxicated, to establish a separate prohibition against driving with a BAC of 0.10 or more.4 The Committee and Floor Reports well document the legislative intent. Both the Senate Judicial Proceedings Committee and the House Judiciary Committee Bill Analysis state, at the outset, that “[t]he bill makes it a misdemeanor for a person to drive or attempt to drive any vehicle while the person has an alcohol concentration of 0.10 or more,” and that it “imposes the same penalties for this offense as are currently imposed on a person who is convicted of driving while intoxicated.”
[774 A.2d 401]
See SENATE JUDICIAL PROCEEDINGS COMMITTEE BILL ANALYSIS and HOUSE JUDICIARY COMMITTEE BILL ANALYSIS on senate Bill 256 (1995) at 1.5
Further evidence that the General Assembly intended driving while intoxicated per se to be a separate offense is found in the fact that, in other sections of the Transportation Article that refer to, or use as a base, violations of ? 21-902, it has stated the intoxication and intoxication per se offenses separately. See, for example, ? 16-205(a)(1), permitting MVA to revoke the driver’s license of any person who “[i]s convicted under ? 21-902(a) or (d) of this article of driving or attempting to drive a motor vehicle while intoxicated, while intoxicated per se, or while under the influence of a controlled dangerous substance.” See also ? 26-405, providing that, if a person is charged “with a violation of … ? 21-902 of this article (‘Driving while intoxicated, while intoxicated per se, under the influence of alcohol … ), the court may find him guilty of any lesser included offense under any subsection of the respective section.” Finally, it is clear from the elements of the offenses themselves that they are not the same. Driving while intoxicated does not require proof of any particular BAC, but it does require proof of a substantial impairment of normal coordination; driving while intoxicated per se, on the other hand, requires proof of a BAC of at least 0.10 (now 0.08) but does not require proof of any impairment of normal coordination.
Ignoring all of this clear and abundant evidence of legislative intent, which is dispositive of the issue, the State looks to decisions in some other States to support its view that ? 21-902(a)(2) creates no more than a reduced evidentiary burden for proving intoxication. Not only do the cases it cites not support its position, but the predominant view around the country is exactly to the contrary. State v. Gonzales, 26 S.W.3d 919 (Tex.App.2000) is cited for the proposition that the State may prove intoxication “by reason of loss of faculties or by reason of alcohol concentration (intoxication per se),” and State v. Edmondson, 125 Idaho 132, 867 P.2d 1006 (App.1994) is cited for a similar proposition. What the State omits to mention, however, is that the Texas and Idaho statutes, unlike that of Maryland, appeared to define intoxication in that alternative manner. As the Gonzales court pointed out, the statute defined “intoxicated” as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol or other proscribed substance into the body, or as having an alcohol concentration of 0.10 or more.” Gonzales, 26 S.W.3d at 920 (emphasis added). When the trial court dismissed a prosecution because the BAC was less than 0.10, the appellate court reversed, holding that the State could also prove intoxication by showing the impairment of mental or physical faculties. In Edmondson, the State expressly limited the prosecution to a
[774 A.2d 402]
showing that the defendant drove with a BAC in excess of 0.10, which, under the Idaho statute, was one of two alternative methods of proving the offense of driving under the influence of alcohol. In that circumstance, the court held that evidence offered by the defendant of the lack of observable signs of intoxication was irrelevant and properly excluded.
Of greater relevance are Anderjeski v. City Court, 135 Ariz. 549, 663 P.2d 233 (1983); State v. Carter, 810 S.W.2d 197 (Tex.Crim.App.1991); Hadden v. State, 180 Ga.App. 496, 349 S.E.2d 770 (1986); State v. Coulombe, 143 Vt. 631, 470 A.2d 1179 (1983); and People v. Stiffler, 237 A.D.2d 753, 655 N.Y.S.2d 139 (1997), all holding or implying that the traditional intoxication and the intoxication per se offenses are separate crimes, and that the latter is not simply a device for facilitating proof of the former.
(B) Whether Driving While Intoxicated Per Se Was Properly Charged
Maryland law directs that a violation of the motor vehicle laws, including ? 21-902, be charged by citation, rather than by some other form of charging document. See ? 26-201(a) and (b) of the Transportation Article and Maryland Rule 4-201(b). The law also directs the Chief Judge of the District Court, after consultation with police administrators and MVA, to design arrest citation forms “that shall be used by all law enforcement agencies in the State” when charging a person with traffic offenses. See ? 1-605(d)(8) of the Courts and Judicial Proceedings Article. Meanor was charged via the Maryland Uniform Complaint and Citation form adopted and distributed in accordance with ? 1-605(d)(8).
Although Maryland Rule 4-203(a) and Maryland common law permit two or more offenses to be charged in separate counts
of a charging document if they are of the same or similar character or are based on the same act or transaction or connected acts or transactions, the Uniform Complaint and Citation form expressly requires that only one violation be charged on a citation. The citation form contains 42 enumerated violations, any one of which may be charged by circling the particular charge, and it also contains a blank space for the officer to charge a “violation not listed above.” The citation form directs the officer to “Circle Violation Below (One Violation Only).” Three of the 42 listed offenses involve ? 21-902. One?No. 33, the one circled here?states “21-902 Driving While Intoxicated & Under Influence Alcohol & Under Influence of Drugs, & Drugs & Alcohol & Controlled Dangerous Substance.” The other two, Nos. 34 and 35, charge “21-902(a) Driving While Intoxicated” and “21-902(b) Driving Under Influence of Alcohol” respectively. There is no listed charge for driving while intoxicated per se; nor does No. 33, which refers to the other offenses stated in ? 21-902, mention that offense. If driving while intoxicated per se is to be expressly charged, therefore, it must be charged in the space available for a “violation not listed above.” That was not done.
In Beckwith v. State, 320 Md. 410, 578 A.2d 220 (1990), we held that, under Maryland common law, “a defendant can ordinarily be convicted of an offense which is not charged but which is a lesser included offense of one that is charged.” Id. at 413, 578 A.2d at 222 (quoting Hagans v. State, 316 Md. 429, 433, 559 A.2d 792, 793-94 (1989)). We noted that, under ? 26-405 of the Transportation Article, that rule applied as well to offenses under ? 21-902. There are two caveats to that general proposition, however, one of which we dealt with in Beckwith and the other of which is applicable here. In Beckwith, the
[774 A.2d 403]
defendant was not charged generally under ? 21-902, but rather with driving while intoxicated under ? 21-902(a). In that circumstance, we held that the State had limited the charge to that offense alone and had effectively excluded the lesser included charge of driving under the influence.
Unlike Beckwith, Meanor was charged generally under ? 21-902, so he could have been convicted of any lesser offense included within that charge, and, indeed, he was convicted of driving under the influence. The problem for the State, however, as we have held above, is that driving while intoxicated per se is not a lesser included offense of driving while intoxicated. It is a separate offense, as both driving while intoxicated and driving while intoxicated per se each have an element not found in the other. Accordingly, we hold that Meanor was not charged with driving while intoxicated per se.
That holding necessarily renders the challenged jury instruction erroneous. As noted, it informed the jury that, if it found that Meanor had a BAC exceeding 0.10 at the time of testing, he was intoxicated. Although the jury certainly could have found that Meanor was driving while intoxicated based on that BAC test result, the test result itself does not establish intoxication. For that reason, the conviction for driving while intoxicated must be vacated.6
Advice of Rights
As an alternative ground of reversal, Meanor complains that the BAC test result was inadmissible because he was not properly advised of the consequences of refusing to take the test, namely, that MVA could modify the otherwise mandated suspension of his driver’s license and issue him a restricted license if he participated in the Interlock Ignition System Program for at least one year. That omission, he urges, amounted to a noncompliance with ? 16-205.1(b)(2)(iii) of the Transportation Article, that the test was therefore not in compliance with ? 16-205.1 and, by virtue of ? 10-309(a)(1) of the Courts and Judicial Proceedings Article, evidence of its results was inadmissible.7
[774 A.2d 404]
Since the enactment of its simple predecessor in 1969, as ? 92A of former Article 66? of the Code, ? 16-205.1 has undergone multiple revisions and has grown from three to twelve pages, bringing with it all of the complexities that such a growth ordinarily entails. Prior to the 1969 enactment, the law made the results of a chemical test admissible in a prosecution for driving while under the influence of alcohol, but the test itself was not mandatory, a person could not be compelled to take it, and the fact that the person refused the test was not admissible in evidence. The only advice that a police officer was required to give was that the person may, but need not, submit to the test. See Maryland Code (1957, 1965 Repl.Vol.) Article 35, ? 100.
The 1969 law, keying on our favorable declaration in Mauldin v. State, 239 Md. 592, 595, 212 A.2d 502, 504 (1965), made it a condition to the issuance or renewal of a driver’s license that the licensee consent in writing to take a chemical test to determine BAC should the person be detained on suspicion of operating a vehicle while under the influence of or impaired by alcohol. The law did not actually compel the person to take the test, but it permitted MVA to suspend the license for up to 60 days if the person, upon request, refused to do so. Notwithstanding that suspension was the only mechanism for enforcing the consent, it was merely permissive and not mandatory. In that regard, the statute required a police officer who stopped a person suspected of operating a motor vehicle under the influence of or while impaired by alcohol to request that the person take the test and “[a]dvise the person of the administrative penalties that may be imposed for such refusal.” Maryland Code (1957, 1969 Supp.) Article 66?, ? 92A(c)3.
Under the 1969 law, as amended from time to time, the suspension sanction was available only if the driver refused to take the test upon a proper request. As noted, that changed with the enactment in 1989 of the administrative per se legislation. The 1989 law had a dual thrust. It required MVA to suspend the license of a person who was properly stopped, asked to take the test, and refused. The suspension was mandatory and it was to last for 120 days for a first offense and one year for a subsequent offense. The law also mandated a suspension, for lesser periods, if the person took the test and it revealed a BAC of 0.10 or more. In the latter situation, however, the law permitted MVA to modify the suspension or issue a restrictive license if (1) during the preceding five years, the person’s license had not been suspended and the person had not been convicted under ? 21-902, and (2) the person was required to drive a motor vehicle in the course of employment, a license was required to attend an alcoholic prevention or treatment program, or the licensee had no alternative form of transportation available and, without the license, his or her ability to earn a living would be severely impaired. No such modification was allowed,
[774 A.2d 405]
however, in the event of a test refusal. The 1989 law required the arresting officer to advise the driver “of the administrative sanctions that shall be imposed for refusal to take the test and for test results indicating an alcohol concentration of 0.10 or more at the time of testing.” Maryland Code (1989 Supp.) Transp. art., ? 16-205.1(b)(2)(iii).
In 1992, we decided two cases bearing on the advice required to be given. In Motor Vehicle Admin. v. Chamberlain, 326 Md. 306, 604 A.2d 919 (1992), the defendant, who refused to take the test and, as a result, had his license suspended for 120 days, complained that the officer failed to inform him that, if he took the test and it showed a BAC of 0.10 or more, MVA could modify the mandated 45-day suspension or issue him a restricted license under the conditions set forth in ? 16-205.1. He presented the issue of “how much advice the Legislature intended the police to give a detained driver concerning the consequences of refusing or failing a chemical test for alcohol.” Id. at 312, 604 A.2d at 922. We held that the statute required advice only as to “administrative sanctions that shall be imposed,” and that “[m]ere potential eligibility for modification of suspension or a restrictive license is not an `administrative sanction.’” Id. at 318, 604 A.2d at 925. In support of that holding, we noted, in relevant part:
“Eligibility for modification of suspension or for a restrictive license becomes reality only if the driver meets the statutory prerequisites and, then, only if the [administrative law judge], in the exercise of discretion, finds modification of suspension or issuance of a restrictive license appropriate. It is inconceivable that the Legislature intended `sanctions’ to include advice concerning a mere potentiality…. [T]he possibility that the suspension will be modified or a restrictive license issued is only that?a possibility, a mere potentiality.”
Id. (citations omitted).
We pointed out a number of problems inherent in attempting to give advice as to possibilities, including the prospect of actually misleading the person. We therefore construed the word “sanctions” as referring only “to an outcome that is certain to happen,” namely, the length of the suspension for refusing the test or taking it and having it show a BAC of 0.10 or more. Id. at 320, 604 A.2d at 925. We confirmed that view, against a due process attack, in the companion case of Hare v. Motor Vehicle Admin., 326 Md. 296, 604 A.2d 914 (1992).
Following our decisions in Chamberlain and Hare, the Legislature made two additions to ? 16-205.1 relevant to the issue raised by Meanor. In 1993, it reacted to those cases by adding to ? 16-205.1(b)(2)(iii)?the subsection dealing with the advice to be given by the officer?a requirement that the advice include “ineligibility for modification of a suspension or issuance of a restrictive license.” See 1993 Md. Laws, ch. 407. In Forman v. Motor Vehicle Admin., 332 Md. 201, 218 n. 8, 630 A.2d 753, 762 n. 8 (1993), we construed that amendment as requiring officers “to specifically advise suspected drunk drivers that the suspension for refusal to take an alcohol concentration test is mandatory,” and we presumed that the DR-15 form used by law enforcement agencies “will be amended accordingly.” It was.
The second change of significance came with 1998 Md. Laws, ch. 526, the major thrust of which was to expand the Ignition Interlock Program and authorize MVA to impose an alcohol restriction that prohibits the licensee from driving or attempting to drive a motor vehicle unless the licensee is a participant in that program. The provision for that restriction was authorized by
[774 A.2d 406]
an amendment to ? 16-113(a), dealing with conditions that may be attached to the issuance of licenses, and by additions to ? 16-205.1(n), dealing with the authority of MVA to modify the suspension of a license. Subsection (n)(2), which applies only if the licensee did not refuse to take the test, was amended to allow MVA to add as a condition to a restrictive license a restriction that prohibits the licensee from driving or attempting to drive unless the licensee is a participant in the Ignition Interlock Program. An amendment to subsection (n)(3) and the addition of a new subsection (n)(4), for the first time, allows MVA to modify a suspension or issue a restrictive license to a person who refused to take the test if the person participates in the Ignition Interlock Program. Thus, under the 1998 Act, if the licensee participates in the Ignition Interlock Program, MVA may modify a suspension or issue a restrictive license whether the licensee refused the test or took it and showed a BAC of 0.10 or more.
The problem, for Meanor, is that, in making conforming amendments to ? 16-205.1(b)(2)(iii), which deals specifically with the advice required to be given to a person detained for driving while intoxicated or under the influence, the Legislature omitted to include any reference to subsections (n)(3) or (n)(4). As amended by the 1998 Act, subsection (b)(2)(iii) requires that the officer:
“Advise the person of the administrative sanctions that shall be imposed for refusal to take the test, including ineligibility for modification of a suspension or issuance of a restrictive license under subsection (n)(1) or (2) of this section, and for test results indicating an alcohol concentration of 0.10 or more at the time of testing.”
(Emphasis added).
This amendment to subsection (b)(2)(iii), and similar amendments made to ? 16205. 1(b)(3)(vii) 3. and (f)(7)(i) 3., changed nothing with respect to the required advice. For a test refusal, the officer must advise only as to the “administrative sanctions” that will be imposed. It is only with respect to a BAC test result of 0.10 (now 0.08) or more?the circumstance to which subsections (n)(1) and (n)(2) relate?that ineligibility for modification or restrictive license must also be disclosed. If the licensee refuses to take the test, the issue remains governed by Chamberlain and Hare. The prospect of a modification of the suspension or a restrictive license under subsection (n)(4) is a mere possibility and not a sanction. The test result was admissible.
CONCLUSION
Our holding with respect to the jury instruction requires that the judgment entered on the conviction for driving while intoxicated be reversed and that that count be remanded to the Circuit Court for possible retrial. The error in the jury instruction does not affect the conviction for driving under the influence, however. Our conclusion that the test result was admissible renders that conviction valid. The trial court, quite properly, merged that conviction, for the lesser included offense, into the greater, so no sentence was imposed on the driving under the influence conviction.
In order to avoid possible double jeopardy, collateral estoppel, law of the case, or other procedural problems, in the event that, notwithstanding that the sentence imposed on the driving while intoxicated conviction was only 90 days, all of which was suspended, the State elects to retry Meanor on the driving while intoxicated offense, we shall vacate the judgment of the Court of Special Appeals and direct that court to vacate the judgment of the Circuit
[774 A.2d 407]
Court and remand to that court for further proceedings in accordance with this Opinion. If the State elects not to retry Meanor for driving while intoxicated or if it elects to retry him on that charge and he is acquitted, the Circuit Court shall reinstate the conviction for driving under the influence and enter a proper sentence thereon. If Meanor is retried for driving while intoxicated and convicted, the court shall reinstate the conviction for driving under the influence but merge it into the greater offense.
JUDGMENT OF COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE JUDGMENT OF CIRCUIT COURT FOR HOWARD COUNTY AND REMAND TO THAT COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION; COSTS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY HOWARD COUNTY.
[774 A.2d 408]
[774 A.2d 409]

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Notes:
1. The major substantive change effected by the 2001 legislation was to reduce the BAC level for what previously was termed “intoxicated per se” from 0.10% to 0.08%. The bill also substituted the term “under the influence of alcohol” for “intoxicated,” as used in ? 21-902(a), and “impaired by” for “under the influence of,” as used in ? 21-902(b). Thus, ? 21-902(a)(1) will now prohibit a person from driving or attempting to drive a vehicle “while under the influence of alcohol,” ? 21-902(a)(2) will prohibit driving or attempting to drive a vehicle “while the person is under the influence of alcohol per se,” and ? 21-902(b) will prohibit driving or attempting to drive a vehicle “while impaired by alcohol.” Section 11-127.1 was amended to define “under the influence of alcohol” as having an alcohol concentration at the time of testing of 0.08 or more.
2. Evidence showed that alcohol had been identified as a contributing factor in the highway deaths of nearly 2,700 people in Maryland in the preceding seven years. See 1988 INTERIM REPORT OF THE TASK FORCE ON DRUNK AND DRUGGED DRIVING at 1.
3. The Task Force noted that the State was already in the process of replacing the existing machines and that it would take between 18 months and three years to complete the replacement and training.
4. The new offense enacted in the 1995 legislation stated that “[a] person may not drive or attempt to drive any vehicle while the person has an alcohol concentration of 0.10 or more as measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath as determined at the time of testing.” The next year, by 1996 Md. Laws, ch. 652, the Legislature amended ? 21-902(a)(2) to read that a person may not drive or attempt to drive any vehicle while the person is intoxicated per se and placed the language defining that state into new ? 11-127.1. Those changes were ones of style.
5. Of some interest as well is the position paper presented to the Committees by Mothers Against Drunk Driving Maryland Organization (MADD), an organization that was specifically represented on the Task Force pursuant to House Joint Resolution 53 (1988) and which was one of the leading and most active proponents of the criminal per se legislation. In that paper, MADD addressed whether, if an “illegal per se” law were enacted, the existing laws based on behavioral evidence should be discarded. Its response was “No, the older driving while intoxicated (DWI) or driving under the influence (DUI) laws should be retained for those cases in which no chemical test is available. This can occur either when an offender refuses to take a chemical test or when some problem develops with the test result. Often, an offender is charged under both the `per se’ and `presumptive’ laws and one of the charges is dropped at a later date.”
6. The erroneous jury instruction does not affect the conviction for driving under the influence, however. Under our holding in Beckwith, that offense was effectively charged and there was more than ample evidence to support the conviction.
7. From 1982 to 2000, ? 10-309(a)(1) was ambiguous in this regard. When initially enacted as part of the Courts and Judicial Proceedings Article in 1973, it stated that a person may not be compelled to submit to a chemical analysis provided for in this subtitle and that evidence of chemical analysis was not admissible if obtained contrary to its provisions, the word “its” obviously referring to the subtitle?title 10, subtitle 3 of the Courts and Judicial Proceedings Article. In State v. Loscomb, 291 Md. 424, 435 A.2d 764 (1981), we held that that exclusionary rule applied to prosecutions for manslaughter by automobile under Article 27, ? 388 and homicide by motor vehicle under ? 388A and that it was triggered by violations of Transportation Article, ? 16-205.1, notwithstanding that ? 16-205.1 was not then part of the subtitle in the Courts and Judicial Proceedings Article. See also State v. Werkheiser, 299 Md. 529, 474 A.2d 898 (1984). In 1982?the next session following the filing of Loscomb?the Legislature amended ? 10-309(a) to provide that evidence of a test or analysis is not admissible “in a prosecution for a violation of ? 21-902 of the Transportation Article if obtained contrary to its provisions.” See 1982 Md. Laws, ch. 93 (emphasis added). That remained the language until 2000, when, as part of 2000 Md. Laws, ch. 629, the Legislature deleted the word “its” and restored the reference to “this subtitle.” The obvious intent of the 1982 law was to overturn Loscomb, to limit the exclusionary rule to prosecutions under ? 21-902, and thus to render it inapplicable to prosecutions under ?? 388 and 388A. If one applies normal rules of English grammar, however, the word “its” in that formulation of the statute would seem to apply only to ? 21-902. Apart from the fact that ? 21-902 contains no provisions relating to the test, which would make that reference utterly meaningless, there is no evidence that the Legislature intended to detach the exclusionary provision from a violation of ? 16-205.1. For whatever reason, the Legislature overlooked an opportunity to correct the inappropriate reference in 1989. See amendments made to ? 10-309 by 1989 Md. Laws, ch. 284. Notwithstanding the grammatical “glitch,” we construe ? 10-309(a) as still triggered by a violation of the “subtitle,” including ? 16-205.1. We have long applied the principle that the Legislature’s manifest intention will prevail over rules of grammatical construction. See Welsh v. Kuntz, 196 Md. 86, 75 A.2d 343 (1950).
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[6] August 14, 2000
[7] (By: Moon, C.J., Levinson, Nakayama, Ramil, and Acoba, JJ.)
[8] On the briefs: Simone C. Polak (Deputy Prosecuting Attorney), for the plaintiff-appellant State of Hawaii Craig T. Kimsel (Jonathan Burge & Associates), for the defendant-appellee Cory J. Ramacher
[9] As amended September 1, 2000.
[10] The plaintiff-appellant State of Hawaii appeals from the findings of fact, conclusions of law, and order of the district court of the second circuit, Wailuku division, filed on August 13, 1999, dismissing the State’s request to revoke the defendant-appellee Cory J. Ramacher’s driver’s license because he refused to submit to drug testing, as authorized by Hawaii Revised Statutes (HRS) §§ 286-151 through 286-163 (1993 & Supp. 1999),*fn1 after being arrested for allegedly committing the offense of driving under the influence of drugs, in violation of HRS § 291-7 (1993).*fn2 The State contends that the district court’s dismissal of the revocation request on the ground that the State had failed to demonstrate, by a preponderance of the evidence, that the arresting police officer had reasonable grounds to believe that Ramacher had been operating a vehicle under the influence of drugs, inasmuch as the officer did not observe Ramacher drive in an erratic or unsafe manner, was erroneous as a matter of law. We have jurisdiction pursuant to HRS § 286-157.5 (Supp. 1999).*fn3 For the reasons discussed below, we vacate the district court’s findings of fact, conclusions of law, and order, filed on August 13, 1999, and remand the matter for further proceedings consistent with this opinion.
[11] I. BACKGROUND
[12] The following factual synopsis is drawn from the testimony of Maui Police Department Officers Clifford Pacheco and Ericlee K. Correa, which was adduced during the hearing conducted in the district court in connection with the State’s request to revoke Ramacher’s license.
[13] At approximately 9:00 p.m. on June 3, 1999, Officer Pacheco was on patrol duty and observed that the rear tires of the vehicle traveling in front of him extended beyond the rear fender walls of the vehicle — a condition that could constitute either “a mudguard violation [or] an unsafe vehicle violation.” Officer Pacheco, as he was driving behind the vehicle, “ran a registered owner check on the vehicle,” which indicated that the vehicle’s safety check sticker had expired in February 1999. The safety check sticker affixed to the rear bumper of the vehicle was a March 2000 sticker. The inconsistency between the registered information and the actual sticker caused Officer Pacheco to believe that the actual sticker affixed to the vehicle may have been fraudulent. Officer Pacheco initiated a traffic stop of the vehicle on Piilani Highway.
[14] After pulling the vehicle over, Officer Pacheco approached, rapped on the driver’s window, which the driver rolled down, and identified himself and the purpose of the stop. Due to the height of the vehicle, a jacked-up truck with tinted windows, the officer could not observe the inside passenger compartment of the vehicle. Officer Pacheco detected the odor of burnt marijuana emanating from within the vehicle.
[15] Ramacher was in the driver’s seat; however, due to the tinted windows, the officer had not been able to observe whether Ramacher had been the actual operator of the truck. Officer Pacheco requested the papers and information necessary to complete a traffic citation and began to return to his police vehicle in order to run checks on Ramacher’s license and registration. Upon reaching the rear of Ramacher’s truck, however, Officer Pacheco glanced back at the truck to determine whether Ramacher and the passenger were moving about inside. Unable to determine what was taking place inside the cab of the truck and believing the situation to be unsafe, Officer Pacheco returned to the driver’s window and requested that both Ramacher and the passenger alight from the truck. Officer Pacheco testified that Ramacher was not then under arrest.
[16] When Ramacher stepped out of the truck, Officer Pacheco observed that his eyes were “slightly bloodshot . . . and . . . glassy.” Officer Pacheco did not, however, detect an odor of “burnt marijuana” emanating from Ramacher’s person once Ramacher had alighted from the truck. Ramacher neither exhibited any difficulty exiting the truck nor providing Officer Pacheco with the paperwork and information that the officer had requested. Nonetheless, Officer Pacheco suspected the possibility that Ramacher was under the influence of marijuana. The officer advised both Ramacher and his passenger of their “constitutional rights,” including their respective rights to legal counsel. Ramacher did not give any indication that he wanted a lawyer.
[17] After advising Ramacher and the passenger of their constitutional rights, Officer Pacheco requested Ramacher’s consent to search the truck. Ramacher refused to consent, and Officer Pacheco “moved to the next step,” which was to obtain a “canine unit” on the scene.*fn4 Officer Pacheco testified that, upon closer examination, the safety sticker did not appear to be fraudulent.
[18] Officer Correa provided backup for Officer Pacheco. When Officer Correa arrived at the scene, Officer Pacheco and Ramacher were positioned at the rear of the truck. Officer Pacheco informed Officer Correa that Ramacher “need[ed] to be detained,” although Officer Pacheco did not state why he wished to detain Ramacher. Officer Correa recalled, however, that “afterwards, he told me it was for — because he had smelled the odor of marijuana coming from within the vehicle.”
[19] Officer Correa escorted Ramacher to Officer Pacheco’s police vehicle and conducted a pat-down search of Ramacher for weapons. During the pat-down, Officer Correa “felt a hard object in [Ramacher's] front, right pocket,” which he removed from the pocket in order to identify it. Officer Correa testified that “it was a miniature digital scale and two envelopes filled with what appeared to be U.S. currency.” Officer Correa returned the three items to Ramacher’s pocket “because they weren’t weapons, and placed him in the police vehicle, handcuffed.” Officer Correa testified that Ramacher was still not under arrest at that time; rather, Officer Correa informed Ramacher that he was being detained for investigative purposes, specifically, a drug investigation.
[20] Officer Correa testified that, at that moment, Ramacher was not being detained for the purpose of investigating whether he was driving under the influence of drugs. Nonetheless, after observing that Ramacher’s eyes were “red and watery and . . . his speech was soft,” Officer Correa suspected that Ramacher “could have been impaired.” Consequently, Officer Correa conducted a field sobriety test in which Ramacher agreed to participate. Officer Correa commenced the field sobriety test with the horizontal gaze and nystagmus maneuver, during which he did not detect any signs of impairment in Ramacher, an indication that Ramacher was not under the influence of alcohol or a depressant inhalant. Officer Correa testified that a person under the influence of marijuana would not exhibit any clues of impairment during the horizontal gaze and nystagmus test.
[21] The second maneuver that Officer Correa administered was “the walk and turn,” during which Officer Correa detected three of eight indicia of impairment. The walk-and-turn maneuver, however, was developed to detect signs of alcohol impairment, not impairment due to drugs; Officer Correa testified that the presence of two clues constituted a 68% indicator that an individual’s blood alcohol content was above .10 percent.
[22] The third maneuver that Officer Correa administered was “[t]he one-leg stand,” during which he detected three of four clues of impairment, which was “[m]ore than the minimum two required [for] a 65 percent indicator of impairment.”
[23] Lastly, Officer Correa requested that Ramacher participate in a preliminary alcohol screen test. Ramacher consented, and the result was a 0.000 reading. Officer Correa did not detect the odor of alcohol on or emanating from Ramacher’s person. Officer Correa concluded that although there were clues of impairment, those clues, together with “the totality of the situation,” were inconsistent with impairment due to alcohol.
[24] Officer Correa, consequently, administered several maneuvers to detect impairment due to drugs. Officer Correa noted: (1) that Ramacher’s eyes exhibited a “lack of convergence,” which meant that Ramacher could not cross his eyes, a condition consistent with cannabis impairment; (2) that his tongue was green, a sign of having smoked cannabis; and (3) that his pulse rate was high, another condition consistent with cannabis impairment. Officer Correa arrested Ramacher on the charge of driving under the influence of drugs and placed Ramacher into his police vehicle.
[25] Officer Correa returned to Ramacher’s truck, observed that it lacked a front license plate, measured the rear tires, and noted that the tires extended six inches beyond the rear tire wells.
[26] Subsequently, Officer Correa transported Ramacher to the Wailuku police station. Once at the police station, Officer Correa reviewed a “warning and waiver of Miranda rights” form with Ramacher. See Miranda v. Arizona, 384 U.S. 436 (1966). Ramacher refused to waive his rights.
[27] Officer Correa proceeded to review a form with Ramacher that apprised him of the sanctions he faced if he refused to submit to drug testing of his blood or urine. Officer Correa informed Ramacher that he was under arrest for two offenses: (1) driving under the influence of marijuana; and (2) promoting a dangerous drug.*fn5 Officer Correa, however, did not inform Ramacher that the blood or urine specimens would be used against him at any subsequent criminal trial. Ramacher refused to submit to a blood or urine test.
[28] On June 4, 1999, the State filed Officer Correa’s “Affidavit; Revocation Of Privilege To Drive Motor Vehicle Upon Refusal To Submit To Drug Testing,” a preprinted form that the officer had filled in with relevant details. Officer Correa’s affidavit stated that, on June 3, 1999, at 10:15 p.m., he had arrested Ramacher for the offense of driving under the influence of drugs, in violation of HRS § 291-7, see supra noteá2. The location of the arrest is described as “Piilani Hwy./North of Kanani Rd.”
[29] Paragraph four of the affidavit contained the following preprinted statement: “That Affiant at the time of arrest had probable cause to believe that the arrestee was operating a motor vehicle or moped, to wit: (describe driving pattern, violations, etc);”. In the space provided beneath this statement, Officer Correa had filled in: “Defendant stopped by ofc. C. Pacheco on the suspicion of a fraudulent safety decal.”
[30] Paragraph five of the affidavit contained the following preprinted statement: “That Affiant at the time of arrest had probable cause to believe that the arrestee had been operating the motor vehicle while under the influence of a drug which impairs, to wit: (describe indica [sic] of consumption, ie. odor of liquor, etc);”. In the space provided beneath this statement, Officer Correa had filled in: “slow soft speech, red/watery eyes, green tint on tongue, poor performance on field sobriety maneuvers, elevated pulse, lack of convergence.” Preprinted portions of the affidavit further stated that Officer Correa had informed Ramacher of the sanctions for refusing to submit to a blood or urine test and that Ramacher had refused to submit to such a test. Copies of both Officer Pacheco’s and Officer Correa’s incident reports were appended to Officer Correa’s affidavit.
[31] On June 9, 1999, the State filed a request for a hearing on the affidavit, pursuant to HRS §§ 286-157.3 (Supp. 1999) and 286-157.4 (Supp. 1999), see infra section III.A, to determine whether the statements contained in the affidavit were true and correct and, if so, the duration of Ramacher’s statutorily mandated driver’s license revocation. On June 23, 1999, the district court conducted a hearing with regard to the State’s request, during which the only testimony adduced was that of Officers Pacheco and Correa.
[32] At the conclusion of the proceeding, the district court ruled as follows:
[33] With respect to his hearing, the hearing on the affidavit, the affidavit of Eric Lee Correa — and that would be specifically for revocation of privilege to drive motor vehicle upon the refusal to submit to drug testing.
[34] The Court is in receipt of the affidavit prepared by Officer Correa dated and notarized June 4th, 1999 and filed on June 4th, 1999.
[35] With respect to this hearing it is incumbent upon this Court to review the affidavit and its contents.
[36] With respect to this matter this court is aware that a Cory J. Ramacher was arrested on June 3rd, and finds that there’s sufficient evidence to report that. Also, that at the time of the arrest affiant had probable cause, according to the contents of this affidavit, to believe that the arrestee was operating a motor vehicle or moped, to wit, specifically for driving when one is under the belief or reasonable suspicion that one is under the influence of drugs, to wit, describe, driving pattern, violations, etcetera.
[37] The basis of this affidavit is based on defendant’s stop by Officer C. Pacheco on the suspicion of a fraudulent safety decal. That based on the fraudulent safety decal, believes that this particular defendant was operating a motor vehicle while under the influence of a drug which impairs, to wit, describe; etcetera.
[38] Given the test of the preponderance of the evidence, the Court finds that the information provided in the affidavit is insufficient to support that conclusion.
[39] The State and the district court subsequently engaged in the following colloquy:
[40] MS. ADAMS [(Deputy Prosecuting Attorney)]: Your Honor, the state would request, ah.
[41] THE COURT: Motion for reconsideration?
[42] MS. ADAMS: We would request a statement of what specifically was insufficient for the record.
[43] THE COURT: Describe driving pattern, violations; etcetera, item four of the affidavit.
[44] MS. ADAMS: So a fraudulent safety sticker is not a sufficient violation, would that be the Court’s ruling?
[45] THE COURT: Yes. Demonstrating that in fact this particular defendant was driving under the influence of drugs based on a fraudulent safety sticker.
[46] MR. MIYAHIRA: And, Your Honor — excuse me. Mark Miyahira appearing on behalf of the state.
[47] That takes into consideration the physical observations of the defendant — excuse me — of Mr. Ramacher, the observations of the performance during the field sobriety maneuver, an elevated pulse, a lack of convergence, is that all taken into consideration in the Court’s decision? And what is the Court’s ruling on that basis?
[48] THE COURT: This Court made its ruling based on the initial stop and item Number 4.
[49] MR. MIYAHIRA: Your Honor, for the record, we would note our objection.
[50] THE COURT: The record is noted.
[51] A VOICE: (Inaudible).
[52] THE COURT: Yeah. The stop.
[53] MR. MIYAHIRA: So it’s my understanding that the Court’s understanding is that it’s insufficient evidence for the stop itself?
[54] THE COURT: No. There’s probable cause to stop based on a safety check violation.
[55] MS. ADAMS: But there is insufficient evidence that the defendant was under the influence?
[56] THE COURT: Based on no driving pattern.
[57] MR. MIYAHIRA: Based on no driving pattern.
[58] The district court calendar for the morning of Wednesday, June 23, 1999 reads in relevant part: “implied consent hearing had; sufficient evidence for probable cause for traffic stop based on safety sticker; but driving pattern as stated in condition #4 of the affidavit not sufficient evidence to support this charge; case dismissed with prejudice.”*fn6

[59] On July 2, 1999, the State filed a motion for written findings of fact, conclusions of law, and an order, and an ex parte motion to extend the time within which to file a notice of appeal. On July 6 and 15, 1999, respectively, the district court filed orders granting (1) the State’s ex parte motion to extend the time to file a notice of appeal and (2) the State’s motion for written findings of fact, conclusions of law, and an order. On August 13, 1999, the State filed proposed findings of fact, conclusions of law, and an order, which the district court signed and filed later that day over Ramacher’s objection as to form.
[60] For the purposes of the present appeal, the district court’s relevant findings of fact were as follows:
[61] 1. On June 3, 1999, at approximately 9:00 p.m. Officer Clifford Pacheco initiated a traffic stop of [Ramacher's] vehicle based on the rear tires of the vehicle protruding past the rear fender walls.
[62] 3. A dispatch check indicated that [Ramacher's] safety sticker had expired in February 1999, while the safety sticker on [Ramacher's] vehicle indicated an expiration date of March 2000; this caused Officer Pacheco to believe that the safety sticker on the vehicle was possibly fraudulent.
[63] 4. Upon approach[,] Officer Pacheco observed [Ramacher] in the driver’s seat of the vehicle and noticed an odor of burnt marijuana emanating from the vehicle.
[64] 6. Due to the height of the vehicle and the fact that Officer Pacheco was unable to see inside of the vehicle, Officer Pacheco asked [Ramacher] and the passenger to exit the vehicle for safety reasons.
[65] 7. Upon exit of the vehicle [Ramacher's] eyes were observed to be slightly bloodshot and glassy[,] causing Officer Pacheco to believe that Defendant was possibly under the influence of marijuana.
[66] 8. Officer Pacheco advised both [Ramacher] and the passenger of their constitutional rights.
[67] 9. On June 3, 1999, at approx 9:00 p.m., Office Ericlee Correa provided back-up assistance to Officer Pacheco in the traffic stop of [Ramacher], who was then being detained for a drug investigation.
[68] 11. Officer Correa administered field sobriety maneuvers on [Ramacher] to determine whether [he] exhibited signs of impairment.
[69] 12. [Ramacher] displayed no signs of horizontal gaze nystagmus (HGN)[,] which indicated to Officer Correa that [Ramacher] was not under the influence of alcohol.
[70] 13. One under the influence of cannabis would not exhibit clues of HGN.
[71] 14. [Ramacher] exhibited signs of impairment during the performance of the walk and turn and one leg stand stages of the field sobriety maneuvers.
[72] 15. [Ramacher] participated in a preliminary alcohol screen test[,] which resulted in a reading of .000 breath alcohol content.
[73] 16. Pursuant to his DRE training, Officer Correa observed [Ramacher's] eyes to exhibit a lack of convergence, a green tint on his tongue, and his pulse rate was elevated, all of which are indicators of cannabis use.
[74] 17. [Ramacher] was placed under arrest based on Officer Correa’s reasonable belief that [Ramacher] was operating his vehicle under the influence of cannabis.
[75] 18. At the Wailuku Police Station[,] Officer Correa reviewed the DUI Drug sanctions form with [Ramacher] by reading it out loud and providing [Ramacher] with a copy. This form offers the options of taking or refusing drug tests and the penalties attached to refusal. [Ramacher] indicated on this form that he refused to submit to any type of chemical test. [Ramacher] also signed this form.
[76] 19. On June 4, 1999, Officer Correa submitted an Affidavit for Revocation of Privilege to Drive Motor Vehicle Upon Refusal to Submit to Drug Testing[.]
[77] The district court entered the following conclusions of law:
[78] 1. At the time of the arrest, Officer Correa had probable cause, according to the contents of his affidavit, to believe that [Ramacher] was operating a motor vehicle while under the influence of drugs, pursuant to HRS §§ 286-157.4(1) and 286-157.4(2).
[79] 2. There was probable cause to stop [Ramacher's] vehicle based on a safety check violation.
[80] 3. The standard for such civil hearing for revocation of privilege to drive a motor vehicle upon refusal to submit to drug testing is by a preponderance of the evidence. Gray v. Administrative Director of the Court, State of Hawaii, 84 Haw. 138, 931 P.2d 580 (1997).
[81] 4. Pursuant to HRS §§ 286-157.4(3) and 286-157.4(4)[,] Officer Correa informed [Ramacher] of the sanctions of [HRS] § 157.3[,] and [Ramacher] refused to submit to a test of his blood or urine.
[82] 5. Given the test of the preponderance of the evidence, the information provided in paragraph four of the affidavit is insufficient to support the conclusion that [Ramacher] was operating a motor vehicle while under the influence of drugs based on no driving pattern.
[83] Lastly, the district court’s written order reads: “Based upon the foregoing Findings of Fact and Conclusions of Law, the Court hereby dismisses the State’s Request for Revocation of Privilege to Drive a Motor Vehicle Upon Refusal to Submit to Drug Testing pursuant to HRS Sections 286-151, 151.5, 157.3, and/or 157.4.”*fn7

[84] II. STANDARDS OF REVIEW
[85] A. Findings of Fact (FOFs) and Conclusions of Law (COLs)
[86] We review a trial court’s FOFs under the clearly erroneous standard.
[87] “A[n] [FOF] is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed.” State v. Kane, 87 Hawaii 71, 74, 951 P.2d 934, 937 (1998). . . . An FOF is also clearly erroneous when “the record lacks substantial evidence to support the finding.” Alejado v. City and County of Honolulu, 89 Hawaii 221, 225, 971 P.2d 310, 314 (App. 1998). . . . See also .á. . Okumura, 78 Hawaii [at] 392, 894 P.2d [at] 89. . . . “We have defined ’substantial evidence’ as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.” Roxas v. Marcos, 89 Hawaii 91, 116, 969 P.2d 1209, 1234 (1998) . . . (citation, some internal quotation marks, and original brackets omitted).á.á.á. [State v. ]Kotis, 91 Hawaii [319,] 328, 984 P.2d [78,] 87 [(1999)] (footnote omitted). . . .
[88] Hawaii appellate courts review [COLs] de novo, under the right/wrong standard. See Associates Fin. Services Co. of Hawaii, Inc. [v. Mijo], 87 Hawaii [19,] 28, 950 P.2d [1219,] 1228 [(1998)]. “Under the right/wrong standard, this court ‘examine[s] the facts and answer[s] the question without being required to give any weight to the trial court’s answer to it.’” [In re] Estate of Marcos, 88 Hawaii [148,] 153, 963 P.2d [1124,] 1129 [(1998)] (citation omitted). Leslie v. Estate of Tavares, 91 Hawaii 394, 399, 984 P.2d 1220, 1225 (1999) (some brackets added and some in original) (some citations omitted).
[89] B. Statutory Interpretation
[90] “[T]he interpretation of a statute . . . is a question of law reviewable denovo.” State v. Arceo, 84 Hawaii 1, 10, 928 P.2d 843, 852 (1996) (quotingState v. Camara, 81 Hawaii 324, 329, 916 P.2d 1225, 1230 (1996) (citations omitted)). See also State v. Toyomura, 80 Hawaii 8, 18, 904 P.2d 893, 903 (1995); State v. Higa, 79 Hawaii 1, 3, 897 P.2d 928, 930, reconsideration denied, 79 Hawaii 341, 902 P.2d 976 (1995); State v. Nakata, 76 Hawaii 360, 365, 878 P.2d 669, 704, reconsideration denied, 76 Hawaii 453, 879 P.2d 556 (1994), cert. denied, 513 U.S. 1147, 115 S.Ct. 1095, 130 L.Ed.2d 1063 (1995). Gray . . . , 84 Hawaii [at] 144, 931 P.2d [at] 586 (1997) (some brackets added and some in original). See also State v. Soto, 84 Hawaii 229, 236, 933 P.2d 66, 73 (1997).
[91] Furthermore, our statutory construction is guided by established rules:
[92] When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
[93] When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. . .
[94] In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS §á1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool. Gray, 84 Hawaii at 148, 931 P.2d at 590 (quoting State v. Toyomura, 80 Hawaii 8, 18-19, 904 P.2d 893, 903-04 (1995)) (brackets and ellipsis points in original) (footnote omitted).
[95] This court may also consider “[t]he reason and spirit of the law, and the cause which induced the legislature to enact it . . . to discover its true meaning.” HRS §á1-15(2) (1993). “Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another.” HRS §á1-16 (1993). State v. Kotis, 91 Hawaii 319, 327, 984 P.2d 78, 86 (1999) (quoting State v. Dudoit, 90 Hawaii 262, 266, 978 P.2d 700, 704 (1999) (quoting State v. Stocker, 90 Hawaii 85, 90-91, 976 P.2d 399, 404-05 (1999) (quoting Ho v. Leftwich, 88 Hawaii 251, 256-57, 965 P.2d 793, 798-99 (1998) (quoting Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawaii 217, 229-30, 953 P.2d 1315, 1327-28 (1998)))).
[96] III. DISCUSSION
[97] The State contends that the district court erred in dismissing the present matter. Specifically, the State argues that the district court’s COL No. 5 was wrong because the statutory scheme for revoking a driver’s license for failure to submit to a blood or urine test did not require that the State demonstrate a “driving pattern” that would have given rise to Officer Correa’s reasonable belief that Ramacher had been driving under the influence of drugs. We hold that the district court’s COL No. 5 was wrong. We agree with the State that the district court erroneously predicated its order dismissing the present matter on the fact that the State did not rely on any “driving pattern” observed by police officers to establish that Ramacher had been driving under the influence of drugs.
[98] A. The Statutory Scheme Regarding The Revocation Of The Privilege To Drive A Motor Vehicle Upon Refusal To Submit To Drug Testing
[99] Any person who operates a motor vehicle or moped on the public highways of Hawaii is “deemed to have given consent . . . to a test or tests . . . of the person’s breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person’s breath, blood, or urine[.]” HRS § 286-151(a) (Supp. 1999). Pursuant to HRS § 286-151(b) (Supp. 1999),
[100] [t]he test or tests shall be administered at the request of a police officer having probable cause to believe the person driving or in actual physical control of a motor vehicle or moped upon the public highways is under the influence of intoxicating liquor or drugs, . . . only after:
[101] (1) [a] lawful arrest; and
[102] (2) [t]he person has been informed by a police officer of the sanctions under part XIV and [HRS §§] 286-151.5 and 286-157.3.
[103] If a police officer possesses probable cause to believe that a person has driven under the influence of drugs, in violation of HRS § 291-7, see supra note 2, then “the person shall have the option to take a blood or urine test, or both, for the purpose of determining the drug content [and] . . . the person shall be informed of the sanctions of [HRS §] 286-157.3 [(Supp. 1999)] for failure to take either test.”*fn8 HRS § 286-151(d) (Supp. 1999).
[104] HRS § 286-157.3 applies in the event a person refuses to submit to a blood or urine test requested by a police officer pursuant to § 286-151(d). HRS § 286-157.3 provides in relevant part:
[105] (a) If a person under arrest refuses to submit to a blood or urine test for the presence of drugs under [HRS §] 286-151(d) . . . , none shall be given except as otherwise provided, but the arresting officer, as soon as practicable, shall submit an affidavit to a district court judge of the circuit in which the arrest was made, stating:
[106] (1) That at the time of arrest, the arresting officer had probable cause to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways while under the influence of drugs;
[107] (2) That the arrested person was informed of the sanctions of this section; and
[108] (3) That the arrested person had refused to submit to a blood or urine test.
[109] (b) Upon receipt of the affidavit, the district court judge shall hold a hearing, as provided in [HRS §] 286-157.4, and shall determine whether the statements contained in the affidavit are true and correct. If the district judge finds the statements contained in the affidavit are true, the judgeshall suspend the arrested person’s license, permit, or any nonresident operating privilege as follows . . . . HRS § 286-157.3 (emphasis added).
[110] At the section 286-157.3(b) hearing, the district court is required to “hear and determine”:
[111] (1) Whether the arresting officer had reasonable grounds to believe that the person had been operating a vehicle while under the influence of drugs;
[112] (2) Whether the person was lawfully arrested;
[113] (3) Whether the arresting officer had informed the person of the sanctions of [HRS §] 286-157.3; and
[114] (4) Whether the person refused to submit to a test of the person’s blood or urine. HRS § 286-157.4(b) (Supp. 1999). In this connection,
[115] there shall be no limit on the introduction of any other competent evidence bearing on the question of whether the person was under the influence of drugs, including but not limited to personal observation by a law enforcement officer of the defendant’s manner, disposition, speech, muscular movement, general appearance, or behavior. HRS. § 286-157.4(c) (Supp. 1999).
[116] B. The District Court’s Order Was Erroneous.
[117] Pursuant to the foregoing statutory scheme governing drivers’ license revocations, the district court was required to revoke Ramacher’s driver’s license if the State demonstrated, by a preponderance of the evidence,*fn9 that the statements contained in Officer Correa’s affidavit were true and correct. In order to fulfill its burden at the hearing, the State was statutorily required to establish: (1) that Officer Correa had reasonable grounds to believe that Ramacher had been driving or was in actual physical control of a motor vehicle upon the public highways while under the influence of drugs; (2) that Ramacher was lawfully arrested; (3) that Officer Correa informed Ramacher of the authorized sanctions if he refused to submit to the requested blood or urine test; and (4) that Ramacher, nonetheless, refused to submit to the requested test. If the State carried its burden, the district court was required to revoke Ramacher’s license, pursuant to HRS § 286-157.3(b). *fn10

[118] The State’s “sole contention” is that the district court’s conclusion “that a driving pattern is necessary before an officer can determine that a person is operating a motor vehicle under the influence of drugs is wrong as a matter of law.” In pressing its argument, the State asserts that the district court’s FOF No. 17, namely, that “[Ramacher] was placed under arrest based on Officer Correa’s reasonable belief that [Ramacher] was operating his vehicle under the influence of cannabis,” together with FOF Nos. 1 through 16, see supra section I, “support the first two requirements of HRS [§] 286-157.4,” to wit, that Officer Correa had reasonable grounds to believe that Ramacher had been driving under the influence of drugs and that Ramacher’s arrest was therefore lawful. However, the inquiry into whether Ramacher “was lawfully arrested,” seeHRS § 286-157.4(b)(2), is not, in itself, dispositive of the question whether Officer Correa possessed “reasonable grounds to believe that [Ramacher] had been operating a vehicle while under the influence of drugs,” see HRS § 286-157.4(b)(1), at the time of the arrest. Whereas FOF No. 17 constitutes an express finding that Officer Correa’s belief that Ramacher had been driving under the influence of cannabis was reasonable, and, therefore, founded upon “reasonable grounds,” it does not speak to the legality of Ramacher’s arrest, which turns on such considerations as whether Officer Correa possessed probable cause to believe that Ramacher had committed the offense defined by HRS § 291-7, see supra note 2, and whether the articulable facts supporting the probable cause determination were legally obtained, or, conversely, tainted by prior improprieties committed by the officers during the stop and detention preceding the arrest. Thus, insofar as the State contends on appeal that FOF No. 17 addresses the lawfulness of Ramacher’s arrest, the State is incorrect.
[119] The State is correct, however, that FOF No. 17 constitutes a finding that Officer Correa possessed reasonable grounds to believe that Ramacher had been driving under the influence of drugs, in satisfaction of the condition set forth in HRS § 286-157.4(b)(1). The district court’s determination that Officer Correa possessed reasonable grounds to believe that Ramacher had been driving under the influence of drugs implicated a mixed question of law and fact and is, therefore, reviewed on appeal “under the clearly erroneous standard because the conclusion [of law] is dependent upon the [findings of] fact. .á.á.” Booth v. Booth, 90 Hawaii 413, 416, 978 P.2d 851, 854 (1999) (quoting Poe v. Hawaii Labor Relations Board, 87 Hawaii 191, 195, 953 P.2d 569, 573 (1998) (quoting Price v. Zoning Board of Appeals of City and County of Honolulu, 77 Hawaii 168, 172, 883 P.2d 629, 633 (1994))) (internal quotation signals omitted).
[120] The district court’s FOFs supporting its COL No. 1 that, at the time of the arrest, Officer Correa had reasonable grounds to believe that Ramacher had been driving under the influence of drugs include: (1) Officer Pacheco’s initiation of the traffic stop of Ramacher’s truck and the officer’s attendant observation that Ramacher was in the driver’s seat (FOF Nos. 1 and 4); (2) Ramacher’s exhibition, during the field sobriety test administered by Officer Correa, of signs of impairment that were inconsistent with alcohol consumption (FOF Nos. 11 through 15); and (3) Ramacher’s exhibition of signs of impairment that were consistent with cannabis consumption (FOF No. 16). Inasmuch as the district court’s FOFs are supported by substantial evidence and we are not left with a definite and firm conviction that a mistake has been committed, we hold that the district court’s determination that Officer Correa had reasonable grounds to believe that Ramacher had been driving under the influence of drugs was not clearly erroneous.
[121] We turn now to the question whether the district court’s COL No. 5, which concluded that, in the absence of any evidence of “driving pattern,” Ramacher’s arrest was not founded upon probable cause, was “wrong.” The State contends that COL No. 5 is inconsistent and irreconcilable with COL No. 1, which states in relevant part: “[a]t the time of arrest, Officer Correa had probable cause, according to the contents of his affidavit, to believe that [Ramacher] was operating a motor vehicle while under the influence of drugs[.]” (Emphasis added). The State reads COL No. 1 as a conclusion that Officer Correa possessed probable cause supporting Ramacher’s arrest. The State’s reading, however, ignores the fact that COL No. 1 merely acknowledged the legal consequence of the averments set forth in Officer Correa’s affidavit, assuming them to be true.
[122] We do not read COL No. 1 as inconsistent with COL No. 5. In COL No. 5, the district court concluded that “the information provided in paragraph four of the affidavit is insufficient to support the conclusion that [Ramacher] was operating a motor vehicle while under the influence of drugs based on no driving pattern.” In other words, the district court, expressly disregarding the information contained in paragraph five of the affidavit — in which Officer Correa enumerated the indicia of impairment consistent with cannabis consumption that he had observed in Ramacher –, concluded that, inasmuch as Officer Pacheco’s initial stop of Ramacher was not predicated upon an observation of an erratic driving pattern, Officer Correa’s subsequent arrest of Ramacher on the charge of driving under the influence of drugs was not grounded on probable cause and was, therefore, unlawful. Such a determination, although “wrong,” is not inconsistent with COL No. 1, which states no more than that Officer Correa averred in his affidavit that he had probable cause to believe that Ramacher had been operating a motor vehicle while under the influence of drugs. When read together, COL Nos. 1 and 5 reflect the district court’s conclusion that Officer Correa’s affidavit incorrectly stated that the officer had possessed probable cause to support his arrest.
[123] However, the district court was wrong to conclude that, simply because Ramacher’s driving pattern did not exhibit any indication that he was impaired, Ramacher could not, after being lawfully stopped for an unrelated traffic violation, be subsequently arrested for driving under the influence of drugs; to the contrary, the facts and circumstances within Officer Correa’s knowledge, as conveyed to him by Officer Pacheco, were sufficient, in themselves, to warrant a person of reasonable caution to hold the belief that Ramacher had been driving, or had been in actual physical control of, his truck while under the influence of a drug. See State v. Gustafson, 55 Haw. 65, 69, 515 P.2d 1256, 1259 (1973) (“Officers have probable cause to make an arrest when ‘the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a [person] of reasonable caution in the belief that [a crime was being committed].’” (Quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 68 L.Ed. 543 (1925) (some brackets added and some in original))).
[124] In Gustafson, this court held, in the context of reviewing a defendant’s driver’s license revocation following his refusal to submit to a breath or blood test, that an arresting officer had probable cause to arrest the defendant on the charge of driving under the influence of alcohol where the record revealed that: (1) the arresting officer, upon arriving on the scene, observed the defendant’s car damaged; (2) the defendant was unsteady on his feet and bore a small cut on his lip; (3) the defendant affirmed he had been involved in an accident, having collided with a telephone pole while driving at a speed of approximately fifteen miles an hour; (4) the officer detected the odor of alcohol on the defendant’s breath; and (5) the defendant refused to answer the question whether he had been consuming intoxicating liquor. Gustafson, 55 Haw. at 68-70, 515 P.2d at 1258-59; see also id. at 70, 515 P.2d at 1259 (Levinson, J., concurring in the judgment that officer had probable cause to arrest).
[125] In State v. Powell, 61 Haw. 316, 603 P.2d 143 (1979), we held that, inasmuch as the initial traffic stop of a defendant’s vehicle was not constitutionally unreasonable, and, “[d]uring the course of conversation with [the defendant], the officer came to conclude that appellee was in a drug-induced state of intoxication,” the officer’s arrest of the defendant on the charge of driving under the influence of drugs was based on probable cause. Id. at 324, 603 P.2d at 149. During his conversation with the defendant, the officer had observed that the defendant’s “speech was slurred and unresponsive[,] his eyes were bloodshot and his pupils dilated[,] he appeared unsteady on his feet[,] and his shirt was unbuttoned at the top and bottom,” notwithstanding that there “was no indication that [the defendant's] apparent intoxication was attributable to the consumption of alcohol.” Id. at 317-18, 603 P.2d at 146. The defendant also admitted to having ingested Valium and gave the officer a prescription bottle labeled “Thorazine,” which the defendant removed from his pocket. Id. at 318, 603 P.2d at 146. Although the officer had observed the defendant driving in a deliberate manner — slowly, pausing ten seconds at stops prior to making turns, turning on a blinker signal two hundred feet prior to an intersection –, thereby leading him to believe that the driver was “either lost, experiencing mechanical difficulties with his car, or intoxicated,” we did not rely on the “driving pattern,” in the words of the district court in the present matter, as a factor in our analysis of the officer’s probable cause to arrest the defendant. Id. at 317, 323-25; 603 P.2d at 145, 149-50. Cf. State v. Kuba, 68 Haw. 184, 185, 191, 706 P.2d 1305, 1307, 1311 (1985) (“Where the evidence presented before the grand jury was that defendant 1) was unsteady on his feet and appeared intoxicated; 2) admitted he had smoked marijuana; 3) had no alcohol in his blood; and 4) had methaqualone in his pockets, there was sufficient evidence to establish probable cause for indictment charging defendant with Driving Under the Influence of Drugs because a reasonable person would suspect defendant’s intoxication was the result of taking drugs.”).
[126] In light of the foregoing case law, we hold that the district court was “wrong” to conclude that the failure of Officer Correa’s affidavit to aver, and of the State to establish, that Ramacher’s driving pattern indicated impairment due to drugs was fatal to the State’s request to revoke Ramacher’s driver’s license. Accordingly, we vacate the district court’s FOFs, COLs, and order, filed August 13, 1999, and remand the present matter for further proceedings consistent with this opinion. In an abundance of caution, we emphasize that, in order to determine whether Ramacher’s arrest was lawful, the district court must not only address whether his arrest was supported by probable cause (entailing, inter alia, consideration as to whether the statements contained in bothparagraphs four and five of Officer Correa’s affidavit are true), but also whether probable cause, if any, was unlawfully established.
[127] IV. CONCLUSION
[128] In light of the foregoing analysis, we vacate the district court’s FOFs, COLs, and order, filed on August 13, 1999, and remand the present matter for further proceedings consistent with this opinion.
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Opinion Footnotes
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[129] *fn1 . HRS §§ 286-151, et seq., discussed infra in section III.A, comprise Title 17, Chapter 286, Part VII of the HRS and provide for the revocation of a motorist’s driver’s license upon the motorist’s refusal to submit to a breath or blood test, once requested to do so by a police officer who has arrested the motorist for driving under the influence of alcohol, in violation of HRS §§ 291-4 or 291-4.3, or upon the motorist’s refusal to submit to a blood or urine test if arrested for driving under the influence of drugs, in violation of HRS § 291-7, see infra note 2. The procedures provided for in Part VII are distinct from, and in addition to, any administrative driver’s license revocation authorized by HRS Chapter 286, Part XIV, set forth at HRS §§ 286-251, et seq., (1993 & Supp. 1999), see generally Gray v. Adminstrative Dir. of the Court, 84 Hawaii 138, 931 P.2d 580 (1997), which are not implicated by the present appeal. HRS § 286-157.3(e) provides that “[t]his section shall not preclude a finding under part XIV for failure to comply with [HRS §] 286-151(b).”
[130] *fn2 . HRS § 291-7 provides in relevant part that “[a] person commits the offense of driving under the influence of drugs if the person operates or assumes actual physical control of the operation of any vehicle while under the influence of any drug which impairs such person’s ability to operate the vehicle in a careful and prudent manner. The term ‘drug’ as used in this section shall mean any controlled substance as defined and enumerated on schedules I through IV of chapter 329.” Marijuana is a schedule I drug. HRSá§á329-14(d)(20) (Supp. 1999).
[131] *fn3 . HRS § 286-157.5 provides that “[a]n order of a district court issued under [HRS §] 286-157.3 may be appealed to the supreme court.” HRS §á286-157.3 is discussed infra in section III.A.
[132] *fn4 . Officer Pacheco’s police report, which was appended to Officer Correa’s affidavit supporting the State’s request to revoke Ramacher’s driver’s license, indicates that a canine unit subsequently arrived on the scene and that the canine alerted to Ramacher’s truck and to a digital scale and two envelopes of currency discovered on Ramacher’s person during a pat-down search conducted by officer Correa.
[133] *fn5 . Officer Correa’s police report, appended to his affidavit supporting the State’s request to revoke Ramacher’s driver’s license, reflected that Ramacher was arrested on charges of “driving under the influence of drugs, in violation of HRS § 291-4.7 [sic; apparently HRS § 291-7],” seesupra note 2, and “promoting dangerous drugs I,” in violation of HRS § 712-1241 (Supp. 1997). Officer Correa’s report also indicated that four different traffic violations and offenses were revealed during the traffic stop, specifically, violations of: HRS §§ 431:10C-104 (Supp. 1997), relating to driving without current no-fault insurance; 291-12.5, a nonexistent statute alleged to apply to “tinted windows”; 249-7 (1993), relating to the lack of a front license plate; and 286-21 (1993), relating to driving a vehicle that is in an unsafe condition, presumably due to the tires’ extension beyond the fender walls. The record on appeal does not evince that Ramacher was ever, or is being, prosecuted or cited for any of the foregoing criminal offenses or traffic-related violations and offenses.
[134] *fn6 . The copy of the district court’s calendar for June 23, 1999 is certified by the district court clerk.

[135] *fn7 . Although the district court’s written order does not indicate whether the matter was dismissed with or without prejudice, the district court calendar states that the “case [was] dismissed with prejudice.”
[136] *fn8 . The statutory sanctions attendant to failing to take either a blood or urine test entail the revocation of the motorist’s driver’s license for a period of either one, two, or four years, or for life, depending on the person’s driving record and the number of “prior drug enforcement contacts” that have been made with that person within the preceding five, seven, or ten years. HRS § 286-157.3(b).
[137] *fn9 . The parties do not dispute that, inasmuch as a proceeding to revoke an individual’s driver’s license pursuant to the implied consent statutes is a civil matter, see, e.g., State v. Uehara, 68 Haw. 512, 515, 721 P.2d 705, 706-07 (1986), the State carried the burden of proving that the contents of Officer Correa’s affidavit were true and correct by a preponderance of the evidence. Accord State v. Wilson, 92 Hawaii 45, 987 P.2d 268 (1999); Gray, supra in text; Kernan v. Tanaka 75 Haw. 1, 856 P.2d 1207 (1993).
[138] *fn10 . The parties do not contest the district court’s FOF No. 18, in which the court found that Officer Correa had informed Ramacher of the sanctions for refusing to submit and that Ramacher, nonetheless, refused to submit to the requested testing.
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]]> http://www.dwilawyers.com/whether-the-district-courts-col-no-5-which-concluded-that-in-the-absence-of-any-evidence-of-driving-pattern-ramachers-arrest-was-not-founded-upon-probable-cause-was-wrong/feed/ 0 http://www.dwilawyers.com/the-court-should-1-give-mpji-cr-410-driving-under-the-influence-of-alcohol-and-driving-while-impaired-by-alcohol-2-give-mpji-cr-410-3-driving-under-the-influence-of-alcohol-per-se-and-3/ http://www.dwilawyers.com/the-court-should-1-give-mpji-cr-410-driving-under-the-influence-of-alcohol-and-driving-while-impaired-by-alcohol-2-give-mpji-cr-410-3-driving-under-the-influence-of-alcohol-per-se-and-3/#comments Tue, 24 Aug 2010 02:39:28 +0000 admin http://www.dwilawyers.com/?p=516 956 A.2d 820
181 Md. App. 477
Daniel Frank TURNER
v.
STATE of Maryland.
No. 2666 September Term, 2006.
Court of Special Appeals of Maryland.
September 10, 2008.
[956 A.2d 821]

Allison Pierce Brasseaux (Nancy S. Forster, Public Defender, on the brief), Baltimore, MD, for Appellant.
James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: KRAUSER, C.J., DAVIS and JAMES R. EYLER, JJ.
[956 A.2d 822]
DAVIS, Judge.
Daniel Frank Turner, appellant, was charged with driving under the influence of alcohol per se, driving under the influence of alcohol, driving while impaired by alcohol, failing to drive right of center and failing to obey a traffic device. On December 12, 2006, appellant was convicted by a jury in the Circuit Court for Calvert County of driving under the influence of alcohol per se. He was sentenced to sixty days imprisonment, with all but three weekends suspended. In addition, he received three years probation and was ordered to pay a $500 fine. In this timely appeal, he raises two issues, which we have rephrased as follows:
1. Whether the trial court committed plain error in instructing the jury on reasonable doubt.
2. Whether the docket entries must be amended to reflect that no disposition was reached as to driving while under the influence, driving while impaired, failing to drive right of center and driving an uninsured vehicle.
We shall affirm the judgment of the circuit court on the first issue and remand the case to the circuit court on the second issue with instructions to amend the docket entries to accurately reflect the disposition rendered at trial.
FACTUAL BACKGROUND
On February 26, 2006, Deputy Paul Wood observed appellant’s vehicle speeding, weaving “sporadically” within his lane, traversing the center line by two to three feet on different occasions and veering onto the shoulder three times. Deputy Wood followed appellant’s vehicle and pulled him over once he determined that it was safe to do so. When he approached, he smelled a “strong odor of alcohol” emanating from the vehicle and observed that appellant’s eyes appeared “glassy” and that appellant’s speech was slurred. Appellant told Deputy Wood that he was driving around searching for a reception site for his sister’s wedding and that he had just departed from a local bar.
Various field sobriety tests were conducted and appellant was subsequently arrested. At the Sheriff’s Department, Corporal Anthony Moschetto performed a breathalyzer test, utilizing the Intoximeter ECIR, which resulted in a reading of 0.152 grams of alcohol per 210 liters of breath and another sample reading of 0.150 grams of alcohol per 210 liters of breath.
According to the testimony of appellant and his father, appellant had attended his sister’s wedding shower earlier that evening. He had arrived at the party at 5:00 p.m. and imbibed two glasses of wine and three beers throughout the course of the evening. At 9:00 p.m., appellant left the party with his parents and went to sleep around 10:15 p.m. Because appellant suffers from insomnia, he awoke at approximately 1:15 a.m. and went to the beach to locate prospective locations for his sister’s rehearsal dinner. Appellant denied consuming any alcoholic beverages while out later that evening. He denied that the vehicle he was operating swerved, but explained that the road was curvy and that the officer’s headlights were bright. He further explained that his behavior was due to an anxiety disorder for which he takes medication, Clomazepan, on a daily basis.
Additional facts will be provided as necessary.
ANALYSIS
I
Appellant first assigns error to the jury instruction regarding the reasonable doubt
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standard propounded by the court. The court’s instructions were in pertinent part as follows:
Just mention a couple of general jury instructions. The defendant is presumed to be innocent of the charges — charges. This presumption remains with the defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty. The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove his innocence. However, the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty, nor is the State required to negate every conceivable circumstance of innocence. A reasonable doubt is a doubt founded upon reason. It is not a fanciful doubt, a whimsical doubt, or a capricious doubt. Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs. However, if you are not satisfied of the defendant’s guilt to that extent, then reasonable doubt exists and the defendant must be found not guilty.
(Emphasis added.) Compare Maryland Criminal Pattern Jury Instruction (MPJI-CR) 2:02 (2005 Supp.).1
Appellant argues that the circuit court erred in deviating from the pattern jury instruction, which no longer contains the language: “fanciful, whimsical or capricious.” He notes that, according to the Comment to the Maryland Criminal Pattern Jury Instruction, this language was specifically omitted from the current reasonable doubt instruction when it was revised in 1999 in response to complaints that the language was confusing jurors. Appellant, therefore, contends that it is likely that the “inclusion of the now disfavored language misled and confused the jurors about the meaning of this critical concept.”
The State preliminarily argues that appellant’s assignment of error has not been properly preserved for appellate review and that, if appellant had objected at the time the instructions were propounded, the circuit court could have corrected any purported error. Appellant concedes that he did not object; however, he urges that this Court take cognizance of the plain error in the instructions that, he claims, were likely to unduly influence the jury
[956 A.2d 824]
and thereby deprive him of his right to a fair trial. Because the reasonable doubt standard of proof is constitutionally mandated, in appellant’s view, the magnitude of the error cannot be ignored.
The State counters that the court’s instructions were neither material nor prejudicial and, therefore, the circumstances attendant here are not so egregious as to warrant plain error review. Rather, the State believes that any divergence in this case was “minor” as the court closely adhered to the pattern jury instruction, with the exception of adding that one obsolete sentence. The State, therefore, argues that the instruction could not have prejudicially impacted appellant.
To preserve an assignment of error in the giving of an instruction, a party must object “on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.” Md. Rule 4-325(e) (2008). Despite a party’s failure to object, appellate courts possess plenary discretion, either on their own initiative or by request of a party, to recognize plain error in jury instructions. Md. Rule 4-325(e). Due to the numerous occasions on which we have been asked to review for plain error and the potential that granting such requests runs the risk of eroding the preservation requirement, we exercise that discretion only when the “`unobjected to error [is] compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.’” Brown v. State, 169 Md.App. 442, 457, 901 A.2d 846 (2006) (quoting Smith v. State, 64 Md. App. 625, 632, 498 A.2d 284 (1985), in turn quoting State v. Hutchinson, 287 Md. 198, 203, 411 A.2d 1035 (1980)).
Appellant believes that this is one of those compelling instances because a proper explication of the reasonable doubt standard is an “indispensable component” of criminal proceedings and any deviation from the pattern jury instruction “was likely to have misled the jury.” The Court of Appeals, in Ruffin v. State, 394 Md. 355, 906 A.2d 360 (2006), changed Maryland common law principles with regard to the toleration of deviations from the pattern jury instructions on the reasonable doubt standard.2 In Ruffin, the trial judge modified the MPJI-CR 2:02 in three different instances. First, the judge instructed the jury that the presumption of innocence remains “until” the jurors believe it is overcome, rather than “unless” the jurors believe it is overcome. Ruffin, 394 Md. at 358, 361, 906 A.2d 360. Second, the trial judge, in defining reasonable doubt, employed the following language of the outdated version of the pattern instruction: “It’s not a fanciful doubt, a whimsical doubt or a capricious doubt.” Id. Lastly, the trial court instructed the jury that the defendant is presumed to be innocent, “just as every defendant who is tried in every courtroom in the United States of America in a criminal charge is.” Id.
In its analysis, the Court began by reiterating that the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights, respectively, guarantee that the accused be convicted only upon proof beyond a reasonable
[956 A.2d 825]
doubt and, therefore, the jury instruction on that standard is an essential component of every criminal proceeding. Id. at 363, 906 A.2d 360. Many judges, attorneys and legal scholars in Maryland, as well as other jurisdictions, have endorsed the use of pattern jury instructions on the reasonable doubt standard to ensure that a defendant’s due process rights are protected and to create consistency and uniformity in jury trials. Id. at 366-67, 906 A.2d 360.3 Appellate courts have regularly been faced with the issue of whether modified instructions on the reasonable doubt standard and presumption of innocence were erroneous. Id. at 371, 906 A.2d 360. To minimize the recurrence of this issue and to assure that instructions are consistent with the basic constitutional rights of the accused, the Ruffin Court held that trial courts are “required to instruct the jury on the presumption of innocence and the reasonable doubt standard of proof which closely adheres to MPJI-CR 2:02.” Id. at 373, 906 A.2d 360 (emphasis added). “Deviations in substance will not be tolerated.” Id.
As gleaned from Ruffin, a court is not required to provide a verbatim recitation of the Maryland Criminal Pattern Jury Instruction defining reasonable doubt, but must “closely adhere” to the language employed. In this case, the court did recite verbatim the language of the pattern jury instruction with one exception; it added the sentence contrasting a reasonable doubt to a “fanciful doubt, a whimsical doubt, or a capricious doubt,” which is the language that appellant claims misled the jury. Prior to the revisions of the pattern instructions in 1999, the language at issue was used to define the reasonable doubt standard. Although the language was later omitted from the pattern jury instruction, it was done so, not because it is erroneous, but in response to complaints by practitioners that it was confusing jurors. See Comment to MPJI-CR 2:02. Because use of that language is technically correct, the circuit court’s use of that language, even after the legislature’s revisions to the pattern instructions, did not alter the State’s substantial burden of proof. Furthermore, even with the inclusion of that language, the circuit court substantially adhered to the current version of the pattern jury instruction, thereby complying with the principles espoused in Ruffin. In the exercise of our plenary authority, we do not deem the addition of the one sentence to be error, much less plain error.
II
Appellant was charged by citation with five offenses: (1) driving under the influence of alcohol per se, (2) driving under the influence of alcohol, (3) driving while impaired by alcohol, (4) failing to drive right of center and (5) failing to obey a traffic device. Charges number one, two and three were submitted to the jury, while the remaining two offenses were not. Of the three charges submitted to the jury, the court instructed the jury that, if it reached a guilty verdict on the driving under the influence per se charge, it need
[956 A.2d 826]
not proceed to determine guilt as to driving under the influence of alcohol and driving while impaired by alcohol. Conversely, if it reached a not guilty verdict on driving under the influence per se, the court instructed the jury to proceed to determine guilt on the other two alcohol-related driving offenses.
Pursuant to the court’s instructions, the jury convicted appellant of driving under the influence per se. The docket entries, however, indicate that appellant was convicted of driving under the influence per se as well as driving under the influence of alcohol, driving while impaired, failing to drive right of center and driving an uninsured vehicle.4 The docket entries specifically indicate that these additional charges were merged on the day of sentencing.
Because the jury never convicted appellant of these additional offenses, he requests this Court to order the docket entries amended. In support thereof, he argues that it is incorrect for the docket entries to indicate that the charges were merged because the term merged “does not indicate that no verdict was taken or that charges were not submitted to the jury.” “Merged,”5 according to appellant, indicates that the jury found him guilty of the offenses and that the court merged the convictions under the required evidence test or, alternatively, merged the sentences under the rule of lenity. Thus, appellant contends that the docket entries are clearly erroneous and may potentially have a negative impact on him in the future if he is later convicted of any traffic offense since many traffic violations impose harsher penalties on subsequent offenders.
The State concedes that, with respect to failure to drive right of center and driving an uninsured vehicle, neither of those charges were alleged in the citation, pursued by the State, nor resolved by the jury. Thus, the State agrees that the docket entries should be amended accordingly. However, with regard to the docket entries for driving under the influence of alcohol and driving while impaired by alcohol — the remaining two alcohol-related driving offenses — the State argues that this claim is unpreserved and, even if it had been preserved, the State claims that these two charges merged with the “per se” conviction.
Appellant responds that, because docket entries are made after trial and after sentencing, he could not have known that the disposition of the charges would be entered erroneously and he further argues that “it would be completely unfair to hold that his failure to object to them at that time waived the issue for purposes of appeal.” Pursuant to Maryland Rule 8-131(a), “[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court….” Expounding on the qualifier, “ordinarily,” the Rule goes on to state, “… but the court may decide such an issue if necessary or desirable to guide the trial court to avoid the expense and delay of another
[956 A.2d 827]
appeal.” We believe that the preservation of the integrity of the record of the lower court proceedings is such an issue that should be addressed on this appeal, notwithstanding that it was not decided below.
As to the State’s argument that the two remaining alcohol-related offenses merged, appellant’s response is two-fold. Appellant first argues that the jury, pursuant to the court’s instructions, did not proceed to render a verdict on those two charges because it found appellant guilty of driving under the influence per se, leaving nothing for the court to merge. Appellant’s second argument is that, even if a disposition had been reached, the two offenses would not merge under the required evidence test and their respective sentences would not merge under the rule of lenity.
Under the required evidence test, if all of the elements of one offense are included in the other so that only the latter offense contains a distinct element, the former merges into the latter. McGrath v. State, 356 Md. 20, 23-24, 736 A.2d 1067 (1999). If each offense requires proof of a fact or an element that the other does not, there is no merger under the required evidence test. Id. However, even when two offenses are separate under the required evidence test, there may still be merger under the rule of lenity. Id. at 25, 736 A.2d 1067. “The rule of lenity, applicable to statutory offenses only, provides that where there is no indication that the legislature intended multiple punishments for the same act, a court will not impose multiple punishments but will, for sentencing purposes, merge one offense into the other.” Id. Under the rule of lenity, the offense carrying the lesser maximum penalty will merge into the offense carrying the greater maximum penalty. Id.
To determine whether driving under the influence of alcohol and driving while impaired by alcohol would merge with the conviction of driving under the influence per se, a comparison of their respective elements is necessary. The Court of Appeals, in Meanor v. State, 364 Md. 511, 774 A.2d 394 (2001), reviewed the legislative history in enacting the “per se” law and, in doing so, compared the various alcohol-related driving offenses. At the time that Meanor was decided, the nomenclature for alcohol-related driving offenses slightly differed from the statutory terms used today. See Comment to MPJI-Cr 4:10 (2003 Supp.). In 2001, the Maryland General Assembly redefined these offenses and, under the new scheme, the offense, formerly called “driving while intoxicated” (DWI), is now called “driving under the influence of alcohol” (DUI). Id. Likewise, the offense, formerly called “driving under the influence of alcohol” (DUI), is now called “driving while impaired” (DWI). Id. These changes do not effect the Meanor holding, but are relevant to understanding how the terminology used in Meanor relates to the current lexicon. For example, Meanor refers to the offense of “driving while intoxicated per se,” which today is known as “driving under the influence per se.” To avoid confusion, we shall substitute the current lexicon when discussing the corresponding offenses in Meanor.
In Meanor, the Court held that driving under the influence per se is not a lesser included offense of driving under the influence. 364 Md. at 526, 774 A.2d 394. “It is a separate offense, as both driving [under the influence] and driving [under the influence per se] each have an element not found in the other.” Id. In reaching that decision, Meanor reviewed the legislative intent behind the enactment of the criminal per se law in 1995, finding ample evidence in the Committee and Floor Reports that the per se law was intended to supplement
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the existing prohibitions. Id. at 519-24, 774 A.2d 394.
In addition to the legislative intent, it is clear from the elements of each of the offenses that they are not the same crimes. See id. at 523-24, 774 A.2d 394. All three offenses are found in separate subsections of § 21-902 of the Transportation Article of the Maryland Code. Section 21-902(a)(1) prohibits a person from driving while under the influence of alcohol, subsection (a)(2) prohibits an individual from driving while under the influence of alcohol per se and, finally, subsection (b)(1) prohibits a person from driving while impaired by alcohol. Md.Code Ann. (2001, 2008 Repl.Vol.), Transp. § 21-902.
The designated pattern jury instructions, drafted by the Maryland State Bar Association Standing Committee on Pattern Jury Instructions, provides that, if the defendant is charged with the crimes of driving under the influence of alcohol and driving while impaired by alcohol, the State must prove:
(1) that the defendant drove, operated, or moved a vehicle [or was in actual physical control of a vehicle]; and
(2) that, at the time, the defendant was either under the influence of alcohol or impaired by alcohol.
MPJI-CR 4:10. The pattern instruction describes the distinction between “under the influence” and “while impaired” as being one of degree. Id. Driving “under the influence” is the more serious of the two offenses and requires that the alcohol that the person has consumed has “substantially impaired the person’s normal coordination.” Id. By contrast, driving “while impaired” requires that the alcohol that the person has consumed “has impaired normal coordination to some extent.” Id. Driving under the influence of alcohol per se,6 on the other hand, requires that the person take a test that shows the blood alcohol level to be 0.08 or more. MPJI-CR 4:10.3 (2003 Supp.).
MPJI-CR 4:10.3 (Driving under the Influence of Alcohol Per Se) Notes on Use provides that, “[i]f the defendant is charged with (1) driving under the influence of alcohol and driving while impaired by alcohol, and (2) driving under the influence of alcohol per se,” as appellant was in this case,
the Court should (1) give MPJI-Cr 4:10 (Driving under the Influence of Alcohol and Driving While Impaired By Alcohol), (2) give MPJI-Cr 4:10.3 (Driving under the Influence of Alcohol Per Se), and (3) give a verdict sheet that includes both driving under the influence of alcohol and driving under the influence of alcohol per se as separate offenses. See Meanor v. State, 364 Md. 511, 774 A.2d 394 (2001); Md. Cts. & Jud. Proc.Code Ann. § 10-307(g) (2002).
The State’s contention that the trial court’s instruction to the jury that it should not proceed to reach a verdict on the remaining two charges is evidence that the trial court merged the offenses is without merit. First and foremost, all three offenses are separate and distinct and neither the offense of driving under the influence of alcohol or driving while impaired by alcohol merge into driving under the influence of alcohol per se under the required evidence test. Therefore, the trial court should not have instructed the jury to disregard the remaining charges after determining guilt on the criminal per se charge. Finally, because there was no disposition rendered on either of those two remaining offenses, pursuant to the court’s
[956 A.2d 829]
instructions, there was nothing to merge at sentencing under the rule of lenity.
Thus, there is a discrepancy between the disposition at trial and the docket entries, which must be reconciled. When there is such a discrepancy between the transcript and the docket entries, absent any evidence that there is error in the transcript, the transcript controls. Carey v. Chessie Computer Servs., Inc., 369 Md. 741, 748, 802 A.2d 1060 (2002). Because the docket entries do not reflect the proceedings as recorded in the transcript, the proper court to correct any error in the docket entries is the court in which the error occurred. See Roberts v. State, 219 Md. 485, 488, 150 A.2d 448 (1959). We therefore remand to the circuit court so that it may correct these errors. We do so with instructions to amend the docket entries related to driving under the influence of alcohol, driving while impaired by alcohol, failing to drive right of center and failing to obey a traffic device. Our decision, however, does not affect the conviction as to driving under the influence of alcohol per se.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART. CASE REMANDED TO CIRCUIT COURT FOR CALVERT COUNTY WITH INSTRUCTIONS TO AMEND THE DOCKET ENTRIES TO REFLECT THAT NO JURY VERDICT WAS TAKEN AND DRIVING UNDER THE INFLUENCE OF ALCOHOL AND DRIVING WHILE IMPAIRED BY ALCOHOL DO NOT MERGE INTO THE CONVICTION FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL PER SE.
COSTS TO BE PAID ONE-HALF BY APPELLANT AND ONE-HALF BY CALVERT COUNTY.
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Notes:
1. The pattern jury instruction on the presumption of innocence and reasonable doubt reads as follows:
The defendant is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove [his][her] innocence. However, the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty. Nor is the State required to negate every conceivable circumstance of innocence.
A reasonable doubt is a doubt founded upon reason. Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs. How ever, if you are not satisfied of the defendant’s guilt to that extent, then reasonable doubt exists and the defendant must be found not guilty.
2. The Court of Appeals specifically declared its intention that the Ruffin decision “represents a change in a Maryland common law principle and not an overruling of prior cases on the ground that they were erroneously decided.” 394 Md. at 373, 906 A.2d 360. Consequently, the Court held that Ruffin was entitled to the benefit of that holding, but, otherwise, “the holding shall be applied only prospectively.” Id. The Ruffin decision was handed down on August 31, 2006. Appellant was tried and convicted on December 12, 2006. Therefore, Ruffin is applicable.
3. See Miller v. State, 380 Md. 1, 30, 843 A.2d 803 (2004) (stating that the concurring opinion in Wills v. State, 329 Md. 370, 620 A.2d 295 (1993) “wisely suggested that trial judges `closely adhere’ to MPJI-CR 2:02 when attempting to define `reasonable doubt’”); Merzbacher v. State, 346 Md. 391, 697 A.2d 432 (1997); Wills, 329 Md. 370, 620 A.2d 295 (1993) (concurring opinion); Himple v. State, 101 Md.App. 579, 584-85, 647 A.2d 1240 (1994). See also Arizona v. Portillo, 182 Ariz. 592, 898 P.2d 970, 974 (1995) (holding that, “in every criminal case trial courts shall give the reasonable doubt instruction” set forth by the court).
4. Appellant notes that, on the citation, a portion of the circle drawn by the issuing officer around the failure to obey a traffic device charge inadvertently encircled the charge listed directly above it, driving an uninsured vehicle.
5. The term “merger” in the context of criminal law is defined as “[t]he absorption of a lesser included offense into a more serious offense when a person is charged with both crimes, so that the person is not subject to double jeopardy.” Black’s Law Dictionary, Eighth Edition, 2004. For example, “a defendant cannot be convicted of both attempt (or solicitation) and the completed crime — though merger does not apply to conspiracy and the completed crime.” Id.
6. “Under the influence of alcohol per se” means “having an alcohol concentration at the time of testing of 0.08 or more as measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” Md.Code Ann. (2001, 2008 Repl. Vol.), Transp. § 11-174.1(a).
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(1) In cases arising in circuits where the federal court of appeals has not decided whether the offense of driving under the influence is a crime of violence under 18 U.S.C. § 16(b) (2000), an offense will be considered a crime of violence if it is committed at least recklessly and involves a substantial risk that the perpetrator may resort to the use of force to carry out the crime; otherwise, where the circuit court has ruled on the issue, the law of the circuit will be applied to cases arising in that jurisdiction.
(2) The offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws is not a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense and is therefore not a crime of violence. Matter of Puente, Interim Decision 3412 (BIA 1999), and Matter of Magallanes, Interim Decision 3341 (BIA 1998), overruled.
FOR RESPONDENT: Frederick Q. Watt, Esquire, New Bedford, Massachusetts
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: John M. Furlong, Jr. Assistant District Counsel
BEFORE: Board En Banc: SCHMIDT, VILLAGELIU, GUENDELSBERGER, ROSENBERG, MILLER, BRENNAN, ESPENOZA, and, OSUNA, Board Members. Concurring Opinions: FILPPU, Board Member; PAULEY, Board Member, joined by SCIALABBA, Acting Chairman. Dissenting Opinion: HURWITZ, Board Member, joined by DUNNE, Vice Chairman; HOLMES, COLE, GRANT, MOSCATO, OHLSON, and HESS, Board Members.
ROSENBERG, Board Member:
This case was last before us on August 8, 2001, when we granted the respondent’s motion to reconsider and terminated removal proceedings. The Immigration and Naturalization Service has filed a motion to reconsider under 8 C.F.R. § 3.2(b) (2001), asking us to reexamine our ruling on the respondent’s motion and to find him removable as charged. We will grant the Service’s motion and issue a new decision. Upon reconsideration, we again terminate the removal proceedings brought against the respondent. We also withdraw from our decisions in Matter of Puente, Interim Decision 3412 (BIA 1999), and Matter of Magallanes, Interim Decision 3341 (BIA 1998), and
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hold that the offense of driving under the influence is not a crime of violence under 18 U.S.C. § 16(b) (2000). See section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).
I. ISSUE
The key issue is whether operating a motor vehicle while under the influence of intoxicating liquor, in violation of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws, constitutes a crime of violence under 18 U.S.C. § 16(b), i.e., a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
II. BACKGROUND
The respondent is a native and citizen of Portugal. He entered the United States as a visitor for pleasure on September 28, 1968, and adjusted his status to that of a lawful permanent resident on June 2, 1969. On March 22, 2000, he was convicted in Massachusetts of operating a motor vehicle while under the influence of intoxicating liquor. See Mass. Gen. Laws ch. 90, § 24(1)(a)(1) (2000). As this was the respondent’s second conviction within 10 years for driving while intoxicated, he was subject to enhanced penalties and received a 2-year sentence of imprisonment.
On April 28, 2000, the Service placed the respondent in removal proceedings and charged him with being removable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), based on his conviction for an aggravated felony. The Service argued that the respondent’s conviction was for a crime of violence under section 101(a)(43)(F) of the Act. The Immigration Judge found the respondent removable as charged, and the respondent appealed. On February 28, 2001, we affirmed the Immigration Judge’s decision without opinion pursuant to Matter of Puente, supra. See 8 C.F.R. § 3.1(a)(7) (2001).
On March 14, 2001, the respondent moved for reconsideration of our decision and we granted that motion. We looked to the specific terms of the Massachusetts statute, which provides that “[w]hoever . . . operates a motor vehicle while under the influence of intoxicating liquor . . . shall be punished.” Mass. Gen. Laws ch. 90, § 24(1)(a)(1). Our examination revealed that, as interpreted by the Massachusetts courts, the essential element of “operating a vehicle” under the statute is “not limited to driving a vehicle or setting it in motion, but encompasses also the intentional act of starting the vehicle’s engine.” Commonwealth v. Eckert, 728 N.E.2d 312, 319 (Mass. 2000). Acts such as sleeping behind the wheel of a car with the engine running or spinning the wheels of a car that cannot move might also
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qualify as “operating a vehicle” under Massachusetts law. See, e.g., Commonwealth v. Ginnetti, 508 N.E.2d 603, 603-05 (Mass. 1987); Commonwealth v. Plowman, 548 N.E.2d 1278, 1281 (Mass. App. Ct. 1990).
Because we determined that the Massachusetts statute encompassed such a broad range of offenses, we concluded that operating a vehicle while intoxicated in violation of that statute was not, by its nature, an offense that involved a substantial risk that force might be used in the commission of the crime. We found the respondent’s conviction distinguishable from that in Matter of Puente, supra, and concluded that the Service had not demonstrated that the respondent’s offense was a crime of violence. Accordingly, we vacated our February 28, 2001, order and terminated proceedings against the respondent.
III. MOTION FOR RECONSIDERATION
A motion to reconsider is a “`request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.’” Matter of Cerna, 20 I&N Dec. 399, 402 n.2 (BIA 1991) (quoting Hurwitz, Motions Practice Before the Board of Immigration Appeals, 20 San Diego L. Rev. 79, 90 (1982)), aff’d, Cerna v. INS, 979 F.2d 212 (11th Cir. 1992). The Service’s motion to reconsider does not challenge our reading of Massachusetts law or our conclusion that an act such as sleeping behind the wheel of a car with its engine running is not a crime of violence under 8 U.S.C. § 16(b). The Service argues only that additional information included in the judgment of conviction is sufficient to establish that the respondent was, in fact, driving under the influence of alcohol and that he was convicted of that particular offense. See Montero-Ubri v. INS, 229 F.3d 319 (1st Cir. 2000) (permitting consideration of related charges, continued without a finding, which were reflected in the official conviction documents).
According to the Service, our rulings in Matter of Puente, supra, and Matter of Magallanes, supra, support the conclusion that driving under the influence, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. The Service therefore claims that we should vacate our decision terminating the respondent’s removal proceedings and find him removable as charged.
IV. INTERPRETATION OF “CRIME OF VIOLENCE”
The definition of an aggravated felony under section 101(a)(43)(F) of the Act includes a “crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense)” for which an alien
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receives a term of imprisonment of at least 1 year. In turn, 18 U.S.C. § 16 defines a “crime of violence” as
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Interpretation of statutory language begins with the terms of the statute itself, and if those terms, on their face, constitute a plain expression of congressional intent, they must be given effect. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). If the statutory terms are ambiguous, the implementing agency must provide a reasonable interpretation of the provision that corresponds with congressional intent. Id. Where, as here, the language is plain, we are bound to “”`assume `that the legislative purpose is expressed by the ordinary meaning of the words used.’”‘” INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987) (quoting INS v. Phinpathya, 464 U.S. 183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (quoting Richards v. United States, 369 U.S. 1, 9 (1962)))).
Neither party claims that the respondent’s offense qualifies as a crime of violence under 18 U.S.C. § 16(a). Moreover, in connection with the Service’s motion to reconsider, neither party has questioned our prior ruling that the respondent’s offense is a felony for purposes of § 16(b). See, e.g., Matter of Madrigal, 21 I&N Dec. 323, 326 (BIA 1996) (declining to address an issue that was not critical to the outcome of the case and was not raised by either party). The Service’s motion turns on two arguments: its claim that the respondent was convicted of driving under the influence, and its assertion that this offense constitutes a crime of violence. The Service bases its second argument on our interpretation of § 16(b) in Matter of Puente, supra.
A. Board Precedent
We have construed the terms of section 101(a)(43)(F) of the Act, defining a crime of violence, in a number of decisions that guide our review in this matter. As we first held in Matter of Alcantar, 20 I&N Dec. 801, 812 (BIA 1994), the nature of a crime, as elucidated by its generic elements, determines whether it is a crime of violence under § 16(b). See also United States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994) (recognizing that “[t]o constitute a crime of violence, a felony must fit into one of several pigeonholes”). Thus, we follow a categorical approach, under which “we look to the statutory definition, not the underlying circumstances of the crime.” Matter of B—-, 21 I&N Dec. 287, 289 (BIA 1996).
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We have held that although § 16(b) “does not require specific intent to do violence,” an offense must have been committed at least recklessly to qualify as a crime of violence under this provision. See Matter of Alcantar, supra, at 813. We also have ruled consistently that in determining the nature of the offense under § 16(b), it is the conduct required to obtain a conviction, rather than the consequence resulting from the crime, that is relevant to our adjudication. See Matter of Sweetser, Interim Decision 3390, at 6-8 (BIA 1999). Specifically, we have recognized that “`the use of physical force’ is an act committed by a criminal defendant, while the `risk of physical injury’ is a consequence of the defendant’s acts.” Id. at 8 (distinguishing the risk of force from the risk of injury and citing Matter of Alcantar, supra, at 806 n.3); see also Matter of Puente, supra, at 11 (distinguishing the use of physical force as “an act committed by a criminal defendant” from the risk of physical injury, which is “a consequence of a criminal defendant’s actions”).
If the language of a statute encompasses some offenses that would constitute a crime of violence under § 16(b) and some that would not, we may look to the record of conviction and the other documents admissible in proving a criminal conviction to assess the nature of the specific offense for which the alien was convicted. Matter of Sweetser, supra; see also United States v. Winter, supra, at 18 (stating that “if the statutory description is inscrutable, or if it blankets both violent and non-violent crimes, a court may peek beneath the coverlet”). In making such an inquiry, we still do not delve into the underlying facts that may have been presented in the criminal proceeding, but focus instead on the elements of the offense that had to be proven to sustain a conviction. Matter of Sweetser, supra, at 6, 7.
B. Matter of Puente
In Matter of Puente, supra, we concluded that driving while intoxicated under section 49.04 of the Texas Penal Code was a crime of violence under 18 U.S.C. § 16(b). We found that “[t]he plain meaning of the word `operate’ connotes an effort, or the doing of something by the operator,” and that “§ 16(b) is not limited to crimes of specific intent, but includes at a minimum reckless behavior.” Id. at 9-10 (citing Matter of Alcantar, supra, at 813). We also restated our finding in Matter of Magallanes, supra, that “drunk driving is an inherently reckless act.” Matter of Puente, supra, at 10.
Although we “recognize[d] that criminal offenses that have the potential for harm do not always carry a substantial risk that force will be used in their commission,” we reiterated that “driving under the influence involves a substantial risk that a driver will injure someone in an accident.” Matter of Puente, supra, at 11 (citing Matter of Magallanes, supra). Thus, in Matter of Puente, we went one step beyond our ruling in Matter of Alcantar and concluded that driving under the influence, which is a strict liability offense
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under Texas law, was a crime of violence. Id. at 10; cf. Matter of Alcantar, supra, at 813.
C. Circuit Court of Appeals Rulings on Driving Under the Influence
Since we issued Matter of Puente in 1999, two federal circuit courts of appeals have deferred to our ruling in that decision. See Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001) (deferring to the Board’s interpretation of the statute because it is reasonable); Le v. United States Attorney General, 196 F.3d 1352 (11th Cir. 1999) (same). In contrast, four circuit courts that have reviewed the statute, de novo, have agreed that the risk involved in driving under the influence is not the risk that the driver may “use” force against the person or property of another to carry out the crime and therefore driving under the influence does not amount to an offense covered by § 16(b). See United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200, 207-08 (2d Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600, 611 (7th Cir. 2001); United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001); see also Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002).
Of these circuits, three have specifically reversed our decisions. The fourth has mandated that its decisions interpreting provisions of section 101(a)(43) of the Act in the context of federal sentence enhancement are applicable in immigration proceedings. See United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert denied, 122 S. Ct. 305 (2001); see also Matter of Olivares, 23 I&N Dec. 148 (BIA 2001). We are unquestionably bound to follow these rulings. See Matter of K—-S—-, 20 I&N Dec. 715 (BIA 1993); Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989).
In addition, the decisions of the United States Court of Appeals for the Third Circuit strongly suggest that it would find, at the very least, that a crime requiring only criminal negligence or no mens rea at all is not an offense that, by its nature, involves a substantial risk that physical force may be used in the course of committing the crime. See Francis v. Reno, 269 F.3d 162, 172-73 (3d Cir. 2001) (stating that vehicular homicide, which requires only proof of criminal negligence, is not an offense that, by its nature, involves a substantial risk that physical force may be used in its commission); United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992) (indicating that “use of physical force” refers to an intentional act, and that although a drunk driver may risk causing injury, in most cases he does not intend to “use” force to cause this harm). Therefore, the rulings of the Third Circuit suggest that it may be inclined to follow the Second, Fifth, Seventh, and Ninth Circuits in concluding that driving under the influence is not a crime of violence.
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The First Circuit, in which the present case arises, has indicated that the term “violent felony” in 18 U.S.C. § 924(e)(2), covering offenses that present a serious potential risk of physical injury, calls to mind “a tradition of crimes that involve the possibility of more closely related, active violence.” United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992). The court found, in dicta, no reason to believe that Congress intended a risk-creating crime such as drunken driving to constitute a violent felony, warranting sentence enhancement. Id. However, the First Circuit has yet to rule squarely on whether driving under the influence is a crime of violence under § 16(b), covering offenses that pose a substantial risk that physical force may be used in committing the offense. Accordingly, if we were to agree with the Service’s contention that the judgment of conviction establishes that the respondent was convicted of driving a motor vehicle while under the influence of alcohol, our ruling in Matter of Puente would be controlling. Matter of Olivares, supra.
We do not feel, however, that we can simply apply Matter of Puente to the respondent’s case without examining that decision in light of the development of circuit court law since we first addressed whether driving under the influence is a crime of violence. Under these circumstances, we need not decide whether the respondent was actually convicted of driving under the influence, but will turn directly to the question whether driving under the influence is a crime of violence under § 16(b).
V. DRIVING UNDER THE INFLUENCE AS A CRIME OF VIOLENCE
The Second, Fifth, Seventh, and Ninth Circuits disagree with our decision in Matter of Puente, supra, that a conviction for driving under the influence, without more, is sufficient to constitute a crime of violence as defined under 18 U.S.C. § 16(b). Although these circuit courts have followed different lines of reasoning to arrive at the conclusion that driving under the influence is not a crime of violence, they agree on one point: the language of § 16(b) specifically excludes offenses in which the accidental application of physical force may result from the commission of the offense.
In other words, the physical force involved must be volitional rather than accidental, and there must be a substantial risk that such force may be used in the course of committing the crime, i.e., to accomplish the original criminal objective. The circuit courts adopting this common conclusion have based their views on the meaning of the particular terms “use,” “against,” and “in the course of committing the offense” that are found in § 16(b), as well as on their conclusion that the mens rea involved must be either intentional or reckless.
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A. “May Be Used” and “Against”
The Second, Fifth, Seventh, and Ninth Circuits have each analyzed the phrase “may be used” in § 16(b) and concluded that this phrase, when read alone or in conjunction with the rest of the provision, requires volitional, and not accidental, force. In United States v. Chapa-Garza, supra, at 926, the Fifth Circuit found that “[t]he criterion that the defendant use physical force against the person or property of another is most reasonably read to refer to intentional conduct, not an accidental, unintended event.” In support of its conclusion, the court cited the definition of “use” in the American Heritage College Dictionary. Id. It noted that its interpretation was consistent with the reasoning articulated in United States v. Parson, supra, at 866, in which the Third Circuit found that the “use of physical force” is an intentional act and noted that drunk drivers do not intend to “use” force to harm others. United States v. Chapa-Garza, supra, at 926.
The Seventh Circuit also cited Parson and found that § 16(b) requires intentional rather than accidental force. See Bazan-Reyes v. INS, supra, at 607. The court noted that it had considered the meaning of the word “use” in the context of its construction of the United States Sentencing Guidelines in United States v. Rutherford, 54 F.3d 370 (7th Cir. 1995), and determined that the phrase “use of physical force” implies “`an intentional act rather than the mere application or exertion of force.’” Bazan-Reyes v. INS, supra, at 608 (quoting United States v. Rutherford, supra, at 372-73).1 In Rutherford, the court explained:
Force is exerted in many instances where it is not employed for any particular purpose. For example, earthquakes and avalanches involve the exertion of a tremendous amount of force…. Referring to a randomly occurring avalanche as a “use” of force would torture the English language…. A drunk driver who injures a pedestrian would not describe the incident by saying he “used” his car to hurt someone. In ordinary English, the word “use” implies intentional availment. No availment of force in order to achieve an end is present in a drunk driving accident.
United States v. Rutherford, supra, at 372-73 (footnote omitted).
The Second Circuit concurred, finding that the word “use” indicates that § 16(b) “`refers only to those offenses in which there is a substantial likelihood that the perpetrator will intentionally employ physical force … not [to] an accidental, unintended event.’” Dalton v. Ashcroft, supra, at 208 (quoting United States v. Chapa-Garza, supra, at 926) (emphasis added). The court stated that the language of § 16(b) “fails to capture the nature of the risk
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inherent in drunk driving,” noting that the risk in drunk driving is the risk of an ensuing accident, not the risk that the driver will use physical force in the course of driving the vehicle. Dalton v. Ashcroft, supra, at 206. The court stated that physical force could not reasonably be interpreted as a foot on the accelerator or a hand on the steering wheel, or all driving would, by definition, involve the use of force. Id. Moreover, the court dismissed the Government’s argument that a defendant would be using physical force if he or she had an accident. The court stated that an accident “may properly be said to involve force,” but “one cannot be said to use force in an accident as one might use force to pry open a heavy, jammed door.” Id.
Finally, the Ninth Circuit stated that “in ordinary, contemporary, and common parlance, the `use’ of something requires a volitional act.” United States v. Trinidad-Aquino, supra, at 1145 (citing Black’s Law Dictionary 1541 (6th ed. 1990)). The court also noted that § 16(b)’s requirement that the physical force be used against the person or property of another indicated that “there must be a volitional feature with regard to the impact or collision, and not simply with regard to the use of the physical force itself.” Id. The court indicated that “it does not make sense to say that [a] person is volitionally using physical force against someone or something when he neither intended to hit the person or thing nor consciously disregarded the risk that he might do so.” Id.; see also Montiel-Barraza v. INS, supra, at 1180 (“If driving under the influence with injury to another does not amount to an aggravated felony, then logically a violation of the lesser offense cannot qualify as an aggravated felony.”).
B. “In the Course of Committing the Offense”
The circuit courts also agree, either implicitly or explicitly, that the phrase “in the course of committing the offense” in § 16(b) indicates that the provision relates to the potential acts an offender might undertake to carry out the principal offense rather than the potential consequences that might result from a crime. See also Matter of Sweetser, supra. Pointing to its ruling in United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996), the Fifth Circuit stated that “the physical force described in section 16(b) is that `used in the course of committing the offense’, not that force that could result from the offense having been committed.” United States v. Chapa-Garza, supra, at 924.
The Second and Seventh Circuits have followed the Fifth Circuit’s ruling in this regard. In doing so, the Seventh Circuit found specifically that “[a]lthough we agree with the BIA that the nature of the crime is the `core concept of § 16(b),’ the words `by its nature’ do not change the meaning of the words `may be used in the course of committing the offense.’” Bazan-Reyes v. INS, supra, at 611; see also Dalton v. Ashcroft, supra, at 206 (stating that
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the risk involved in drunk driving is the risk of an ensuing accident, “it is not the risk that the driver will `use physical force’ in the course of driving the vehicle”). The Ninth Circuit did not address this issue, but its finding that a driver does not volitionally use force against the person or property of another simply by driving the car implies that it agrees with this reading of § 16(b). See United States v. Trinidad-Aquino, supra, at 1145.
C. Level of Intent Required: At Least Recklessness
In finding that a crime must involve volitional rather than accidental force before it may qualify as a crime of violence under § 16(b), the Fifth, Seventh, and Ninth Circuits all addressed the level of intent required to place a crime in this category. On the one hand, the Fifth and Seventh Circuits have implied that a mens rea of pure recklessness may not be enough; an individual must instead act with “recklessness plus” or “recklessness as regards the substantial likelihood that the offender will intentionally employ force against the person or property of another in order to effectuate commission of the offense.” United States v. Chapa-Garza, supra, at 925, 927 (emphasis added); see also Bazan-Reyes v. INS, supra, at 611. The Seventh Circuit has concluded that drunk driving convictions are not crimes of violence under § 16(b) “[b]ecause `[i]ntentional force … is virtually never employed to commit’ any of the [drunk driving] offenses for which petitioners were convicted.” Bazan-Reyes v. INS, supra, at 612 (quoting United States v. Chapa-Garza, supra, at 927).
The Ninth Circuit, on the other hand, has concluded that a mens rea of recklessness is sufficient to constitute a crime of violence. See United States v. Trinidad-Aquino, supra, at 1145. The Second Circuit has not specifically articulated an intent requirement, but in recognizing that “[t]here are many crimes that involve a substantial risk of injury but do not involve the use of force,” the court recognized that “[c]rimes of gross negligence or reckless endangerment, such as leaving an infant alone near a pool, involve a risk of injury without the use of force.” Dalton v. Ashcroft, supra, at 207.
The common thread in all of these rulings is that, according to the statutory language, something more than negligence is required before an offense may qualify as a crime of violence under § 16(b). In other words, a crime must be committed at least recklessly before it can be found to involve a substantial risk that the perpetrator will resort to force to complete it.
VI. REEXAMINATION OF MATTER OF PUENTE
A majority of the federal circuit courts that have addressed whether driving under the influence is a crime of violence, and therefore an aggravated felony under section 101(a)(43)(F) of the Act, have, either explicitly or implicitly, disagreed with our reasoning in Matter of Puente, supra. Consistent with our
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decision in Matter of Alcantar, supra, at 812, these courts have looked to the elements of the offense necessary to obtain a conviction and focused on the risk that the perpetrator may resort to physical force in committing the offense. They have not given any weight to the “inherent risk” that an accident may occur. Cf. Matter of Puente, supra, at 10.
The offenses at issue in each circuit, like the Texas offense at issue in Matter of Puente, were either strict liability crimes or crimes that required only proof of negligence for conviction. The courts found that, at a minimum, an offense must be committed at least recklessly to meet the “volitional force” requirement contained in the word “use.” In addition, these courts declined to differentiate between the terms “use” and “may be used.” Cf. id. at 10 (criticizing the respondent’s argument for “fail[ing] to acknowledge the significant contextual distinction between the term `use’ in § 16(a) and the phrase `may be used’ in § 16(b)”). These courts have also concluded that the risk that an accident that may occur as the result of driving under the influence does not establish that, by its nature, the crime of driving under the influence involves a substantial risk that force may be used in the course of committing the offense. Cf. id. Accordingly, none of the offenses were found to qualify as crimes of violence under § 16(b).
These circuit court decisions are compatible with the majority of the decisions in which we have interpreted the term “crime of violence.” For example, requiring that an offense be committed at least recklessly before it can be deemed a crime of violence under § 16(b) echoes our ruling in Matter of Alcantar, supra, in which we determined that a mens rea of at least recklessness was required. In Alcantar, we also recognized that the risk of force related to acts the offender might undertake in carrying out the principal offense. Id. at 808 (finding that the covered crimes were ones that “`”by their nature” create a situation in which it is likely that the criminal may resort to physical force to accomplish the criminal end.’” (quoting United States v. Springfield, 829 F.2d 860, 863 (9th Cir. 1987)). Thus, we suggested that § 16(b) required active violence, rather than accidental force.
In addition, requiring that an individual affirmatively use force to carry out a crime is consistent with our ruling in Matter of Sweetser, supra, in which we held that negligent homicide was not a crime of violence. The focus on action rather than inaction in these circuit courts’ driving under the influence decisions underscores that it is the conduct that may be used to perpetrate the offense, rather than the risk of injury or consequences flowing from the crime, that is crucial in determining the nature of the offense. See Matter of Sweetser, supra, at 6, 8.
Given these considerations and our strong interest in ensuring that aliens receive uniform treatment nationwide, we withdraw from our rulings in Matter of Puente, supra, and Matter of Magallanes, supra. We will follow the law of the circuit in those circuits that have addressed the question whether
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driving under the influence is a crime of violence. See Matter of Anselmo, supra. In those circuits that have not yet ruled on the issue, we will require that the elements of the offense reflect that there is a substantial risk that the perpetrator may resort to the use of force to carry out the crime before the offense is deemed to qualify as a crime of violence under § 16(b). Moreover, we will require that an offense be committed at least recklessly to meet this requirement.
VII. APPLICATION TO THE RESPONDENT
In this case, the respondent was convicted of operating a motor vehicle while under the influence of intoxicating liquors in violation of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws. We have assumed, for the purpose of this motion, that he was convicted of actually driving under the influence rather than of engaging in any other act that might qualify as “operating” under Massachusetts law.
We find that the respondent’s offense of driving under the influence in violation of Massachusetts law is not a crime that, by its nature, involves a substantial risk that the perpetrator may use force against the person or property of another to carry out the particular offense. Simply put, the risk that the respondent may have an accident is not the same as the risk contemplated by § 16(b). The crime is accomplished when the perpetrator unlawfully drives while under the influence.
First, even if there is a risk that an accident might occur, a conviction for this offense does not require a showing that the respondent intentionally, or even volitionally, used force against another in the course of driving under the influence. See Commonwealth v. Wallace, 439 N.E.2d 848 (Mass. App. Ct. 1982) (discussing the mental element of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws and finding that, to be convicted under this statute, an alien must have known, or had reason to know, of the possible effects of a drug or alcohol on his driving abilities). Second, there is no basis to conclude that the respondent might have to cause such an accident in order to carry out his crime. Accordingly, the respondent’s offense cannot constitute a crime of violence under § 16(b) of the Act, and it does not qualify as an aggravated felony under section 101(a)(43)(F) of the Act.
We therefore conclude that the Service has failed to establish that the respondent is removable as an aggravated felon under section 237(a)(2)(A)(iii) of the Act, and we again terminate the proceedings against the respondent.
ORDER: The motion to reconsider submitted by the Immigration and Naturalization Service is granted, and the August 8, 2001, decision of the Board is vacated.
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FURTHER ORDER: The removal proceedings against the respondent are terminated.
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Notes:
1. In Bazan-Reyes v. INS, supra, the Seventh Circuit found that its reference in Rutherford to a statutory provision that was analogous to § 16(a) applied equally to § 16(b). Id. at 608. Accordingly, the court ruled that the language of § 16(b) simply did not support a finding that a risk that one object will apply force to another is enough to constitute a crime of violence. Id.
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CONCURRING OPINION: Lauri Steven Filppu, Board Member
I respectfully concur.
In Matter of Puente, Interim Decision 3412 (BIA 1999), and Matter of Magallanes, Interim Decision 3341 (BIA 1998), we faced the question whether a felony offense for driving under the influence of alcohol constituted a crime of violence under 18 U.S.C. § 16(b) (2000) at a time when there was little case law from the federal courts of appeals on the issue and no controlling precedent directly on point. Since then, several courts of appeals have explicitly rejected our reading of 18 U.S.C. § 16(b), two circuits have deferred to us, but no circuit has independently agreed with and adopted our interpretation as its own understanding of the statute.
In view of this more recent case law, the majority’s current interpretation of 18 U.S.C. § 16(b) reflects a very reasonable reading of this criminal law provision. But I also understand the reasonableness of the view we initially adopted in Puente and Magallanes to be reflected in the various rulings that give deference to our prior interpretation, as well as in the circuit court dissents that are consistent with that prior reading. See United States v. Trinidad-Aquino, 259 F.3d 1140, 1147-48 (9th Cir. 2001) (Kozinski, J., dissenting); Dalton v. Ashcroft, 257 F.3d 200, 209-10 (2d Cir. 2001) (Walker, C.J., dissenting); Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001) (deferring to the Board’s prior interpretation); Le v. United States Attorney General, 196 F.3d 1352 (11th Cir. 1999) (same). Despite what appears to be the inconclusive state of the law, I agree with the majority that we should not continue to apply Puente and Magallanes in circuits that have not specifically spoken on this issue.1
The meaning of the crime of violence provision in 18 U.S.C. § 16 is a question of federal criminal law. At its core, it does not become a question of civil immigration law merely because the statute incorporates it by reference in the “aggravated felony” definition in section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000). Because it is a question of federal criminal law, we owe deference to the construction given the statute by the federal circuit courts of appeals. Those courts do not owe deference to our reading of 18 U.S.C. § 16. See Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) (explaining that deference does not extend to an agency’s interpretation of a judicially enforceable portion of a statute); Crandon v. United States, 494 U.S. 152, 168 (1990) (Scalia, J., concurring
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in judgment) (stating that deference does not apply to the interpretation of a criminal statute administered by the courts).
When resolving an ambiguity in the meaning of a federal criminal statute, we should look first to the law of the circuit in which the case arises. If that fails to provide an answer, an examination of the law of other circuits should follow. We ought further to apply the interpretation in any consistent body of case law we find, absent strong reasons to believe that interpretation is wrong. We may, of course, be forced to offer our own interpretation of federal criminal law at times, but our reading of a criminal statute does not carry any extra weight merely because we faced the question before the courts of appeals faced it. Importantly, we should withdraw from our own reading of criminal law in the face of a consistent rejection of that reading by the courts of appeals, just as we would follow a consistent judicial interpretation that already exists when we first confront a question of federal criminal law that has arisen many times before in the criminal context, but perhaps not in our own context.
The principal concern I have with the majority’s ruling is that it once again can be seen to announce the Board’s reading of criminal law for Immigration Judges and the parties to follow in removal cases, if there is no controlling law in the particular circuit in which the case arises. We tread on thin ice, however, when we attempt to offer yet another definitive reading of criminal law, particularly given the various rationales offered by the courts of appeals on the meaning of a “crime of violence” in this precise context.
As sensible as the majority’s reading currently appears, we would do better to refer the parties and the Immigration Judges to circuit court law as their starting point in cases such as this. Although the rationales of the courts vary, those courts which clearly announce their own interpretations of the statute have all agreed that a driving while intoxicated crime such as the respondent’s is not a crime of violence. I concur in the result reached by the majority because these courts of appeals have rejected our interpretation and no court has independently determined that the criminal law actually means what we declared it to be in Puente and Magallanes.
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Notes:
1. I would continue to follow our prior rulings in the United States Courts of Appeals for the Tenth and Eleventh Circuits because, as the dissenting opinion notes, there are indications that these circuits agreed with our rulings, in addition to deferring to them.
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CONCURRING OPINION: Roger A. Pauley, Board Member, in which Lori L. Scialabba, Acting Chairman, joined
I respectfully concur and write to emphasize my understanding of the limited nature of the holding in this case.
Although a determination that an offense is a “crime of violence” under 18 U.S.C. § 16(b) (2000) necessitates a finding that the crime involves a volitional, rather than negligent, act, as the majority opinion amply explains,1
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it also requires a determination that the act involves a risk that physical force will be used in the offense (more precisely, the “substantial risk that physical force against the person or property of another may be used in the course of committing the offense”).
I agree with the federal courts of appeals that have focused on the type of “physical force” contemplated by the statute that, consistent with the title of the statutory provision in question and the terminology of the phrase being defined (i.e., “crime of violence”), the type of physical force involved must be violent or destructive in nature. See, e.g., Dalton v. Ashcroft, 257 F.3d 200, 206 (2d Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600, 611 (7th Cir. 2001); United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir. 2000).2 Some volitional uses of a vehicle, e.g., unlawfully stopping a vehicle to rest on a highway while under the influence of alcohol or drugs, do not involve the kind of physical force necessary to meet the “crime of violence” definition.
However, other volitional uses of a vehicle may qualify. A person may unleash destructive or violent force through a nonviolent act, such as pulling the trigger of a loaded firearm or pressing a button that electronically sets off a bomb or releases a torrent of water. A vehicle may also be used in this manner, as by recklessly, knowingly, or deliberately releasing the brake or stepping on the gas. Thus, I do not wish that my joining in the majority opinion should be construed as expressing or implying a belief that volitional misuse of a vehicle, while the actor is intoxicated or otherwise, can never be a crime of violence. Indeed, it is only because the statute in this case reaches negligent misuse that the respondent’s (assumed) act of driving the vehicle while under the influence of alcohol escapes the “crime of violence” definition. See Francis v. Reno, 269 F.3d 162, 172-73 (3d Cir. 2001).
Moreover, even if I believed that Matter of Puente, Interim Decision 3412 (BIA 1999), was properly decided, the fact that, as the majority opinion points out, at least four courts of appeals have rejected its reasoning, whereas none has endorsed it other than by according it “Chevron” deference, would cause me at this juncture to bow to the weight of federal appellate court authority in the interest of uniform application of the immigration laws. The four circuits that have rejected Matter of Puente, supra—the Second, Fifth,
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Seventh, and Ninth—collectively account for a large percentage, perhaps a majority, of the cases that come before Immigration Judges and the Board. Accordingly, for the Board to persist in defending a precedent decision in the remaining circuits (two more of which, as the majority opinion also shows, have issued decisions that appear to indicate that they, too, would likely not uphold the reasoning or result in Matter of Puente) would only have the effect of continuing and exacerbating an uneven application of the immigration laws relating to the recurring issue whether driving under the influence, pursuant to a statute that punishes such conduct when committed negligently, constitutes a crime of violence.
Although I do not believe that the Board should withdraw from precedent decisions it considers to be well reasoned simply because one or more courts of appeals announces its disagreement, here the number of adverse appellate court rulings, and the fact that the scoreboard is so lopsidedly arrayed against the Puente precedent, counsels strongly in favor of the Board’s abandoning Puente and adopting the prevailing appellate court view. If Congress wishes to overturn this outcome and to include negligent DUI felony offenses within the “crime of violence” definition, it is of course free to do so.
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Notes:
1. As the majority opinion finally gets around to noting, in its penultimate paragraph, the Massachusetts statute at issue in this case has been authoritatively construed by the Massachusetts Supreme Judicial Court as requiring no more than a negligent state of mind. Hence, and crucially, the respondent cannot satisfy the volitional element of the “crime of violence” definition.
2. The Ceron-Sanchez decision construed 18 U.S.C. § 16(a), but as both branches of the “crime of violence” definition employ the identical phrase, “physical force,” it would be a strange jurisprudence to find that Congress intended a different meaning for the same words in the two branches.
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DISSENTING OPINION: Gerald S. Hurwitz, Board Member, in which Mary Maguire Dunne, Vice Chairman; David B. Holmes, Patricia A. Cole, Edward R. Grant, Anthony C. Moscato, Kevin A. Ohlson, and Frederick D. Hess, Board Members, joined
I respectfully dissent. I believe that our ruling in Matter of Puente, Interim Decision 3412 (BIA 1999), is correct. Moreover, I do not believe that the federal courts have adopted a uniform approach to the question whether driving under the influence is a crime of violence under 18 U.S.C. § 16(b) (2000). I therefore would continue to apply Matter of Puente to cases like the respondent’s where there is no controlling circuit court precedent.
We first addressed the question whether driving under the influence qualifies as a crime of violence in Matter of Magallanes, Interim Decision 3341 (BIA 1998). In that case, we discussed the risks inherent in drunk driving, and we found that aggravated driving under the influence in violation of Arizona law “is the type of crime that involves a substantial risk of harm to persons and property.” Matter of Magallanes, supra, at 6. We also found that drunk driving is an inherently reckless act. Id. We therefore concluded that driving under the influence was a crime of violence under § 16(b).
In Matter of Sweetser, Interim Decision 3390 (BIA 1999), we clarified our ruling in Matter of Magallanes, supra. We noted that, although we had used the phrase “risk of harm” in determining that driving under the influence was a crime of violence under § 16(b), our ruling in Matter of Magallanes had turned on the conduct required for conviction rather than on the risk of injury.
[23 I&N Dec. 352]
We explained that driving under the influence does involve a substantial risk that a driver will injure another in an accident, but we noted that this risk is directly related to the risk that physical force may be used. We stressed that this link between the use of force and the risk of harm is required before a crime may qualify as a crime of violence under § 16(b). See Matter of Sweetser, supra, at 9.
In Matter of Puente, supra, we again addressed the question whether driving under the influence qualifies as a crime of violence under § 16(b), and we expanded upon our rulings in Matter of Magallanes and Matter of Sweetser. The Texas statute at issue in Matter of Puente punished a slightly wider range of conduct than the statute at issue in Matter of Magallanes, supra. Nevertheless, we found that operating a motor vehicle in a public place while under the influence, as defined in Texas law, involved a substantial risk that physical force against the person or property of another might be used in the course of committing the offense. Matter of Puente, supra, at 10-11.
The respondent in Matter of Puente argued that his crime did not fall within § 16(b) because that provision required a specific intent to use force. We disagreed, explaining that we had addressed this question in Matter of Alcantar, 20 I&N Dec. 801 (BIA 1994), and had concluded that “§ 16(b) is not limited to crimes of specific intent, but includes at a minimum reckless behavior.” Matter of Puente, supra, at 10. We also noted that driving under the influence is an inherently reckless act. Id. (citing Matter of Magallanes, supra). And we found that imposing a specific intent requirement was not reasonable given the language of the statute. We pointed out that § 16(a) employed the term “use” whereas § 16(b) contained the phrase “may be used.” We found that this distinction was significant and counseled against reading a specific intent requirement into § 16(b). Matter of Puente, supra.
Since we issued our ruling in Matter of Puente, two federal circuit courts have agreed that driving under the influence is a crime of violence. In Le v. United States Attorney General, 196 F.3d 1352, 1354 (11th Cir. 1999), the United States Court of Appeals for the Eleventh Circuit found that driving under the influence with serious bodily injury, in violation of section 316.193(3) of the Florida Statutes, was a crime of violence under 18 U.S.C. § 16(a) because the use of physical force was an element of the crime. And in Tapia Garcia v. INS, 237 F.3d 1216, 1222 (10th Cir. 2001), the Tenth Circuit upheld our ruling that driving under the influence of alcohol or drugs in violation of Idaho law was a crime of violence under § 16(b).
The Tenth Circuit applied a deferential standard of review in evaluating our ruling, but it also inserted some of its own reasoning to support its conclusion that our interpretation of § 16(b) was reasonable. See id. at 1222-23. The court cited case law which described the risks involved in drunk driving and stated that “the well-documented danger inherent in drunk
[23 I&N Dec. 353]
driving supports the conclusion that a DUI offense may also constitute a crime of violence under § 16(b) because the generic elements of the offense present `a substantial risk that physical force … may be used.’” Id. at 1223. These statements suggest that the court not only deferred to our view but also agreed with our approach.
Four other circuits have addressed the drunk driving issue and have disagreed with our ruling in Matter of Puente, supra. See United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); see also Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002). The rulings of these circuits, however, are not identical. Each circuit has approached the issue slightly differently, and the circuits do not agree on the type of force required under § 16(b). The Fifth and Seventh Circuits have found that § 16(b) refers only to those offenses in which there is a substantial likelihood that the perpetrator will intentionally employ physical force against the person or property of another. See United States v. Chapa-Garza, supra, at 925; Bazan-Reyes v. INS, supra, at 611. The Ninth Circuit, on the other hand, has found that intentional conduct is not required. See United States v. Trinidad-Aquino, supra, at 1146. And the Second Circuit has not directly addressed the intent requirement. The Second Circuit instead has stated that the risk inherent in drunk driving is not the risk that the driver will “use physical force” in the course of driving the vehicle. See Dalton v. Ashcroft, supra, at 206-07.
These rulings do not offer either a uniform reading of § 16(b) or a consistent approach to the question whether driving under the influence is a crime of violence. Moreover, two of the decisions contain strong dissents. See Dalton v. Ashcroft, supra, at 209 (Walker, C.J., dissenting); United States v. Trinidad-Aquino, supra, at 147-48 (Kozinski, J., dissenting). Chief Judge John M. Walker of the Second Circuit dissented from his colleagues because he found that, even if the word “use” in § 16(b) involves intentional availment, “driving inevitably involves intentional use of force: the driver necessarily intends to use mechanized force to propel the vehicle to its destination.” Dalton v. Ashcroft, supra, at 209. Chief Judge Walker went on to state that all driving involves some risk that physical force my be used against the person or property of another, but driving under the influence makes that risk substantial. Id.
Judge Kozinski of the Ninth Circuit also found that driving under the influence fell within the confines of § 16(b). He agreed with the Trinidad-Aquino majority that recklessly disregarding a known risk is a sufficient mental state to form the basis of an aggravated felony under § 16(b), but he noted that the majority ignored the reckless conduct involved in driving under the influence, namely, drinking and driving. Judge Kozinski
[23 I&N Dec. 354]
found that this conduct qualified as a crime of violence under Ninth Circuit precedent, and he therefore disagreed with the majority’s conclusion. United States v. Trinidad-Aquino, supra, at 1148.
In addition, Judge Rhesa Hawkins Barksdale of the Fifth Circuit dissented from her circuit’s denial of a petition to rehear United States v. Chapa-Garza, supra, en banc. See United States v. Chapa-Garza, 262 F.3d 479 (5th Cir. 2001) (Barksdale, J., dissenting). In her dissent, she indicated that she disagreed with the ruling in United States v. Chapa-Garza, 243 F.3d 921, and stated that the gravity of the drunk driving issue demanded further review. United States v. Chapa-Garza, 262 F.3d at 485 (Barksdale, J., dissenting).
These dissents show that, even within the circuits that have disagreed with Matter of Puente, there is support for the Board’s ruling. Moreover, they highlight the lack of uniformity in the circuit court findings. The circuit courts have approached the drunk driving issue from a variety of perspectives and have not offered a clear and uniform interpretation of § 16(b). Given this lack of unanimity, I do not believe it is appropriate to withdraw from our ruling in Matter of Puente, supra. I would therefore continue to apply Matter of Puente to cases like the respondent’s that arise within the circuits that have not ruled on the issue or have not differed with our interpretation.

[764 A.2d 1157]
Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Lauren Sandler Zurier, Aaron L. Weisman, Providence, for plaintiff.
Randy Olen, Providence, John F. Cicilline, Bristol, for defendant.
OPINION
GOLDBERG, Justice.
This case came before the Court pursuant to three questions certified from the Superior Court in accordance with G.L. 1956 ? 9-24-27. The Superior Court asks us to consider for the first time whether G.L. 1956 ? 31-27-2(c) should be interpreted to preclude, for violations of ? 31-27-2.2 (driving under the influence, death resulting), the admission at trial of the results of breath, blood or urine tests when the samples were seized without the defendant’s consent, but pursuant to a search warrant issued by a justice of the Superior Court.
FACTS AND PROCEDURAL HISTORY
The essential facts of this case are undisputed. The defendant, Lisa A. DiStefano (defendant), was charged by information with one count of driving under the influence of liquor or drugs (DUI), death resulting, in violation of ? 31-27-2.2, and various counts of possession of a controlled substance, as the result of a tragic accident on June 15, 1997. At about eight o’clock that night, defendant drove from the Shell Gas station onto Post Road in Warwick, and her motor vehicle collided with a motorcycle drivenby David Smith, who died as a result of the injuries he suffered in the accident. An on-scene investigation ensued; defendant was arrested for suspicion of operating a motor vehicle while under the influence of drugs or alcohol.
Subsequently, defendant was taken to the Warwick police station, where she submitted to a breath test, the results of which indicated a blood alcohol content (BAC) of .026. Sergeant Peter Johnson, a drug evaluation expert, performed a drug influence evaluation on defendant and concluded
[764 A.2d 1158]
that she was under the influence of a central nervous system stimulant. Sergeant Johnson asked defendant to submit to a blood test to determine the presence or absence of controlled substances. The defendant refused. The Warwick police then obtained a search warrant from a justice of the Superior Court to extract samples of defendant’s blood and urine. The blood test, taken from a sample obtained at Kent County Hospital, revealed the presence of marijuana and cocaine.
Before trial, defendant filed a motion to suppress the introduction of the test results on the ground that her blood was drawn without her consent, in violation of ? 31-27-2(c), and therefore, the test results were inadmissible, even though the police had obtained a judicially authorized search warrant. The Superior Court stayed further proceedings and propounded the following questions of law to this Court:
1. “In view of State v. Timms, 505 A.2d 1132 (R.I.1986), should R.I. Gen. Laws ? 31-27-2(c) be interpreted to preclude, in a case involving an alleged violation of R.I. Gen. Laws ? 31-27-2.2 (driving under the influence, death resulting), the admission at trial of the results of breathalyzer, blood or urine tests at trial, when the breath, blood or urine samples were seized without defendant’s consent and pursuant to a judicially authorized search warrant?”
2. “Does the statutory language of R.I. Gen. Laws ? 31-27-2.1, the Breathalyzer Refusal Statute, preclude members of law enforcementfrom obtaining a judicially authorized search warrant to seize a defendant’s blood for alcohol or drug testing?”
3. “If R.I. Gen. Laws ? 31-27-2.1 does preclude law enforcement from obtaining a search warrant, is this an unconstitutional limitation on the judicial authority to issue search warrants as provided in Article 5 of the Rhode Island Constitution and R.I. Gen. Laws ? 12-5-1?”
RHODE ISLAND’S DRUNK-DRIVING LAWS ? BACKGROUND
Although drunk-driving statutes have existed for some time, the collective awareness of the people of the State of Rhode Island led to an overhaul of the state’s drunk-driving laws in the early 1980s. In 1982, the offense of driving under the influence of intoxicating liquor (DUI) was upgraded to a misdemeanor, and the necessity of producing competent evidence of intoxication in addition to proof of a defendant’s blood alcohol level was eliminated.1 A year later, the DUI statute, ? 31-27-2, was further amended by the addition of subsection (b), which provided that any person charged with DUI, “whose blood alcohol concentration is one-tenth of 1% or more by weight as shown by a chemical analysis of a blood, breath or urine sample shall be guilty” of DUI.2 In 1983, all statutory presumptions against a finding of intoxication were deleted from ? 31-27-2.1, in an amendment entitled “Revocation of license upon refusal to submit to chemical test.”3 This amendment relieved the state of the necessity of producing expert testimony that demonstrated the effects of a given blood alcohol concentration on the accused. See State v. Lussier, 511 A.2d 958, 960 (R.I.1986). Further, the General Assembly enacted two additional felony offenses at that time, ? 31-27-1.1, entitled “Driving so as to endanger, resulting in personal injury,” and ? 31-27-2.2, entitled “Driving under the influence of liquor or drugs, resulting in death.”
RHODE ISLAND’S DRUNK-DRIVING LAWS ? PRESENT DAY
In the case at bar, defendant was charged under the current version of
[764 A.2d 1159]
? 31-27-2.2,4 driving under the influence of liquor or drugs, death resulting, a felony. Although this statute defines the crime of DUI, death resulting, and prescribes the punishment for that offense, it does not set forth the methods of proof to be used in determining whether the crime was committed. Rather, ? 31-27-2(c)5 provides that evidence of the amount of intoxicating liquor or drugs, as shown by chemical analysis of the defendant’s blood, breath, or urine, is inadmissible unless the defendant has consented to the test. However, this subsection specifically references ? 31-27-2(a), misdemeanor DUI, and makes no reference to felonyDUI offenses. Therefore, the dispositive question for this Court is whether the Legislature intended to exclude nonconsensual test results in DUI felony cases by explicitly including the consent requirement for misdemeanor prosecutions and implicitly including the requirement in felony prosecutions. For the reasons that follow, the Chief Justice and I conclude that this Court’s decisions in State v. Timms, 505 A.2d 1132 (R.I.1986), and State v. DiCicco, 707 A.2d 251 (R.I.1998), compel us to answer this question in the affirmative.
Our holding in Timms, in which we espoused the well-known canon of statutory construction in pari materia (statutes relating to the same subject matter should be construed together for consistency and to effectuate the policy of the law), would seem to indicate that consent would be necessary to make blood tests admissible, even in cases of DUI, death resulting. Timms, 505 A.2d at 1135. Although the issue before us in Timms involved a different public safety statute, namely ? 31-27-1, entitled “Driving so as to endanger, resulting in death,” our analysis of the two comparable statutes applies just as forcibly in this case. In Timms, we considered whether the actual consent requirement in ? 31-27-2 would apply, or whether a written consent form, in accordance with the Confidentiality of Health Care Information Act, was required for hospital personnel to obtain defendant’s blood. Timms, 505 A.2d at 1134-35. We stated:
“Although ? 31-27-1 * * * does not explicitly require that the defendant consent to the taking of a blood test before that test may be introduced as evidence in a criminal prosecution, the Legislature must have intended it to include the consent safeguards explicitly provided in ? 31-27-2. Both statutes concern the same subject matter, namely driving in a manner so as to threaten public safety. Furthermore, in addition to the already-enacted
[764 A.2d 1160]
?? 31-27-1 and 31-27-2, the Legislature subsequently created ? 31-27-2.2, `Driving under the influence of liquor or drugs, resulting in death.’ The consent safeguards in ? 31-27-2.2 are also not explicitly in its text, yet the Legislature would not have enacted two separate driving-under-the-influencesections, intending that the consent safeguards apply only to one. `It follows that if a mechanical application of a statutory definition produces an absurd result or defeats legislative intent, this court will look beyond mere semantics and give effect to the purpose of the act.’ * * * Thus ascertaining the intent of the Legislature, we are duty bound to give effect to that intent.” Timms, 505 A.2d at 1135-36. (Emphasis added.)
Moreover, in DiCicco, a DUI death resulting case, we declared that, “[t]he wrong proscribed by ? 31-27-2 is identical to that in ? 31-27-2.2, namely, operating a motor vehicle while `under the influence of any intoxicating liquor, toluene, or any controlled substance as defined [by law],’” and accordingly, we held that, “the well-known canon of statutory construction in pari materia dictates that similar statutes should be interpreted similarly.” DiCicco, 707 A.2d at 253-54. Further, in State v. St. Jean, 554 A.2d 206, 211 (R.I.1989), a case of DUI, death resulting, we unequivocally declared that consent was a condition precedent to admissibility.
This Court has stated in scores of cases that when a statute is clear and unambiguous, there is no room for statutory interpretation and the language of the statute must be given its plain and literal meaning. See, e.g., RIH Medical Foundation, Inc. v. Nolan, 723 A.2d 1123, 1126 (R.I.1999); State v. Peterson, 722 A.2d 259, 264 (R.I.1998); Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996). One of the earlier cases that set forth this proposition in colorful language was Kastal v. Hickory House, Inc., 95 R.I. 366, 187 A.2d 262 (1963), in which the Court commented:
“Only when the legislature sounds an uncertain trumpet may the court move in to clarify the call. But when the call is clear and certain as it is here we may not consider whether the statute as written comports with our ideas of justice, expediency or sound public policy. In such circumstances that is not the court’s business.” Id. at 369, 187 A.2d at 264-65 (citing Blais v. Franklin, 31 R.I. 95, 77 A. 172 (1910)).
Moreover, we are cognizant that in the fourteen years since our decision in Timms, the General Assembly has amended ? 31-27-2 on nineteen occasions6 and amended ? 31-27-2.1 four times,7 but has never revisited the issue of consent as a precondition to admissibility.
It is interesting to note that in the same year it enacted ? 31-27-2.2, the General Assembly also enacted a new subsection, ? 31-27-2.3, entitled “Revocation of license upon refusal to submit to preliminary breath test.” This section, which is positioned beside ? 31-27-2.2, provides that when a law enforcement officer has reason to believe that a person is driving or has actual physical control of any motor vehicle in this state while under the influence of alcohol, the officer may require such person to submit to a preliminary breath analysis. If the results of the preliminary breath analysis are positive, then the officer may arrest the driver and proceed to take further tests pursuant to
[764 A.2d 1161]
? 31-27-2.1. These further tests are subject to the safeguards recognized in Timms, as required by ? 31-27-2. This statute further provides that if a person refuses to submit to this preliminary breath test, such person would be guilty of an infraction and subjected to the penalty specified in G.L. 1956 ? 31-41-4, which provides for suspension of a driver’s license and fines to be imposed in the Traffic Tribunal.8
One of the statutory aids to construction is a maxim entitled noscitur a sociis, the literal translation of which is “[i]t is known from its associates.” Black’s Law Dictionary 1060 (6th ed.1990).The definition goes on to state that, “[u]nder the doctrine of `noscitur a sociis,’ the meaning of questionable or doubtful words or phrases in a statute may be ascertained by reference to the meaning of other words or phrases associated with it.” Id. (Emphasis added.) Thus, an application of this doctrine might cause one to construe the juxtaposition of ?? 31-27-2.2 and 31-27-2.3 as statutes that are interacting. Certainly, the Timms court determined that the consent safeguards provided in ? 31-27-2 were applicable to the felony charge set forth in ? 31-27-1, driving so as to endanger, death resulting. It cannot be said that such a construction is unreasonable, or that it amounts to judicial amendment of clear and unambiguous legislative pronouncements. With this background in mind, we shall now respond to the certified questions.
DISCUSSION
I
Questions One and Two
Question one requires us to determine whether, in view of Timms, ? 31-27-2(c) should be interpreted to preclude the admission of the results of breath, blood or urine tests in cases of DUI, death resulting, when the evidence has been seized without consent but with a judicially authorized search warrant. Question two asks us to determine whether the “none shall be given” language contained in the refusal statute, ? 31-27-2.1, precludes members of law enforcement from obtaining a search warrant to seize blood for alcohol and drug testing. Inasmuch as the answer to question one is inextricably linked to the issue raised by question two, the issue respecting the admissibility of blood, breath or urine tests at any DUI trial, misdemeanor or felony, must begin with an examination of ? 31-27-2.1.
A
Refusal to Submit to a Chemical Test
Section 31-27-2.1, entitled “Refusal to submit to chemical test,” provides in subsection (a) that, “[i]f 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, as amended, none shall be given * * *.” (Emphasis added.) This statutory prohibition against a chemical test in the absence of actual consent has never been amended by the General Assembly, and applies, according to the statute, to “[a]ny person who operates a motor vehicle within this state * * *.” Id. Although this Court has held that the implied consent required by ? 31-27-2.1 only is applicable in license revocation proceedings and cannot be substituted for actual consent necessary to the admissibility of the test results, we never have held that the mandate that no test shall be given is inapplicable in DUI cases, felony or otherwise. In fact, we never have been called upon to decide the applicability of the mandate “none shall be given.”
In its brief, the state pointed to State v. Berker, 120 R.I. 849, 391 A.2d 107 (1978), as support for its position that the prohibition against a nonconsensual test in ? 31-27-2.1
[764 A.2d 1162]
has no bearing upon the questions before us today. We respectfully disagree. In Berker, after the defendant’s arrest was declared illegal, the state sought to sustain the admissibility of his test results on the ground of actual consent, suggesting that the implied consent provisions of ? 31-27-2.1 were a proper substitute for actual consent. We rejected this argument and declared that, “[it] is clear that the consent described in section 31-27-2.1 is applicable only in license revocation proceedings,” and cannot serve to satisfy the actual consent necessary to admissibility in DUI cases. Berker, 120 R.I. at 857, 391 A.2d at 112. It is important to note that the defendant in Berker did not refuse to submit to a test, and this Court was not called upon to interpret that portion of the statute that provides that, upon a driver’s refusal to submit toa test, “none shall be given.” We have never held that this clear and unambiguous prohibition against compelling a driver to submit to a test is inapplicable in DUI cases, felony or misdemeanor. Indeed, were we to do so, such a holding would render that portion of the statute meaningless, in clear violation of our rules of statutory construction.
Although we often have stated that the DUI and the refusal statutes are two separate and distinct offenses for which there is no double-jeopardy bar, State v. Jenkins, 673 A.2d 1094, 1097 (R.I.1996), there is nonetheless an important temporal distinction between the two. The offense of refusal under ? 31-27-2.1 can arise only after a driver had been arrested, informed of his or her rights, asked to submit to a chemical test, and refused, whereas DUI cases begin with an arrest based upon probable cause to believe that the driver had been driving while under the influence of alcohol or drugs, too often resulting in death or serious injury. An officer’s request that a driver submit to a chemical test is one of the first steps in the investigation of a drunk-driving fatality. Although the offense of DUI, death resulting, already has been committed, unless and until the suspect actually refuses to submit to a test, he or she has not committed the additional offense of refusal, at which point the prohibition against compelling a test becomes operable.
The clear language of ? 31-27-2.1(a) requires that, “[a]ny 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,” and that, “[i]f 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, as amended, none shall be given, but an administrative judge of the [traffic tribunal shall be notified].” (Emphasis added.) Thus, it is clear to us that the implied consent statute contained in ? 31-27-2.1 applies to any person who operates amotor vehicle in this state, and applies to every arrest for DUI, whether it be felony or misdemeanor, and that upon refusal, no test shall be given. It is inconceivable that the Legislature would cloak a driver charged with the lesser offense of misdemeanor DUI with the protections afforded by ? 31-27-2.1, and not afford those same protections to a motorist accused of the more serious felony offenses.
We note that in addition to the statutory penalties for refusal,9 a driver may nonetheless be charged with DUI, felony or otherwise, and a conviction can rest on evidence other than BAC evidence, including the opinion of the experienced
[764 A.2d 1163]
officer that the driver gave every appearance of intoxication. See DiCicco, 707 A.2d at 255. However, nothing in ? 31-27-2.1 or in the case law of this state suggests in any way that a driver who has refused to submit to a test can be compelled to submit against his or her will, whether or not the officer is armed with a search warrant. The words “none shall be given” are plain and unambiguous, and evince the intent of the General Assembly of this state that consent to a test is the lynch pin to admissibility.
We reject the state’s argument that the phrase “none shall be given” has no applicability beyond the issue of whether a driver may be charged with refusal under ? 31-27-2.1. At oral argument, the state was unable to enunciate any police department or Attorney General policy respecting cases in which the defendant refuses to cooperate with the medical technician and forcibly resists the extraction of blood or urine. The state was unable to explain what the response of the police would be in cases of physical resistance by the suspect, nor was the state able to explain under what statutory authorityhospital personnel can be required to extract blood or urine from a driver who resists, or whether the police departments have agreed to indemnify the innocent medical technicians in the state’s emergency rooms against subsequent claims of assault or medical malpractice for performing a medical procedure without the consent of the patient.
Further, the state was unable to indicate whether the Warwick police or the Attorney General have developed any policies and procedures relative to the amount of force and restraint that may be exerted upon an intoxicated individual who refuses to cooperate. Nor has there been any mention of the real danger a cocktail of blood, needles, and a resistant, intoxicated motorist presents to those who attempt to subdue the suspect in order to draw blood. Indeed, when asked these questions at oral argument, the attorney for the state acknowledged the need for greater consideration of these issues. The question we ask is, consideration by whom? Certainly not this Court, nor a member of the Executive Branch of state government, nor the local police departments. We are satisfied that this area is clearly within the province of the General Assembly.
Accordingly, a majority of the members of this Court conclude that the language “none shall be given” is plain and unambiguous and becomes operative after a suspect refuses a chemical test, and that, upon such a refusal, a test shall not be given, with or without a warrant, to “[a]ny person who operates a motor vehicle within this state,” pursuant to ? 31-27-2.1(a).
B
Forcible Seizure of a Suspect’s Blood
We are equally satisfied that, in addition to the prohibition contained in ? 31-27-2.1, there are sound public policy reasons behind the requirement that a defendant consent to a test before one may be undertaken. In State v. Locke, 418 A.2d 843 (R.I.1980), a DUI case, the defendant alleged that, notwithstanding his consent to a breath test, the police subjected him to an unreasonable search and seizure. In reliance on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the justices of this Court concluded that the test was reasonable and we declared our belief that the Legislature created the consent requirement of ? 31-27-2.1 “to prevent a violent confrontation between an arresting officer and a suspect unwilling to submit to a test of this sort.” Locke, 418 A.2d at 849. These policy considerations obtain today. In this case, the state was unable to explain how medical personnel at Kent County Hospital came to agree to draw defendant’s blood without her authorization and consent. Moreover, as will be discussed infra, there is no statutory authorization for the issuance of a search warrant for the seizure of bodily fluids, and the state’s suggestion that
[764 A.2d 1164]
there can be a valid “judicially authorized warrant ” is without merit.
Importantly, in the majority of states that admit evidence of a defendant’s BAC when the blood or urine was drawn without compliance with implied consent procedures, there exists a statute that either requires or permits the withdrawal of blood in felony DUI cases. In State v. Robarge, 35 Conn.Supp. 511, 391 A.2d 184 (1977), a case relied upon by the state in the case at bar, the Superior Court of Connecticut, Appellate Session, held that the State of Connecticut’s failure to establish that the defendant-motorist consented to the taking of a blood sample that was seized at the direction of the state’s medical examiner after the death of her passenger was irrelevant because consent applied only to prosecutions for DUI, not to those for vehicular homicide cases. However, Connecticut’s implied consent statutedoes not prohibit the seizure of blood after a refusal, and in fact, it authorizes a test of a motorist’s blood by or at the direction of the state’s medical examiner after a fatal accident.10
In addition to Connecticut, several states have amended their respective implied consent statutes in response to judicial pronouncements that the prohibition against a test in the face of a refusal applies to felony, as well as misdemeanor, offenses. Indeed, many of these jurisdictions faced issues similar to those facing us today. In State v. Bellino, 390 A.2d 1014, 1020 (Me.1978), the Supreme Judicial Court of Maine, citing the “great concern over the right of the State to take blood or breath samples of the motoring public,” interpreted Maine’s then-existing implied consent statute, and concluded that an arrest and the actual consent of the offending motorist were conditions precedent to the admissibility in both misdemeanor and felony cases, and suppressed the results of a blood test in a DUI, death resulting, case in which the blood was drawn by a nurse at the direction of a police officer. Maine’s implied consent statute has since been amended, and carves out an exception for those who drink, drive, and kill. Maine’s present statute11 not only requires the withdrawal of blood from a DUI suspectinvolved in an accident resulting in death, it provides immunity for any medical technician who performs the test.12 Likewise, Vermont’s current implied consent law specifically authorizes a law enforcement officer, upon the refusal of a motorist to submit to a test, to secure a search warrant to obtain a blood sample in any DUI case resulting in serious bodily injury or death.13
Moreover, the history of the State of New Hampshire concerning the applicability of that state’s implied consent law to
[764 A.2d 1165]
DUI death cases also is instructive. In State v. Berry, 121 N.H. 324, 428 A.2d 1250, 1251 (1981), the Supreme Court of New Hampshire held that the provision in that state’s implied consent statute providing that, “`if a person under arrest refuses * * * to submit to a chemical test * * * none shall be given,’” was applicable in DUI cases and in cases of negligent homicide, and found there to be nothing in “the legislative history of the implied consent statute, to indicate that the words `none shall be given’ were intended by the legislature to mean other than that no chemical test shall be administered without the accused’s consent.” The New Hampshire legislature amended the statute with the specific intent “to eliminate the prohibition against the taking of a chemical test to determine intoxication where a person is under arrest for any offense other than a violation or misdemeanor * * *.” State v. Wong, 125 N.H. 610, 486 A.2d 262, 273 (1984) (quoting N.H.Rev.Stat.Ann. ? 563:3 (1981)). New Hampshire now has a statute requiring the testing for evidence of alcohol or drug consumption for all persons involved in a collision that results in death or serious bodily injury to any person, including all deceased vehicle occupants and any pedestrian involved in the collision, but in the case of a living driver, the officer must have probable cause to believe that the driver caused the collision.14
Additionally, the State of Maryland’s experience is almost identical to the case at bar. Prior to 1982, Maryland’s implied consent statute required that certain procedural steps be taken before a chemical test was administered. In Loscomb v. State, 45 Md.App. 598, 416 A.2d 1276 (1980), the Court of Special Appeals declared the implied consent statute applicable to all DUI death offenses, including the prohibition against a compulsory test. Thereafter, the Legislature amended Maryland’s implied consent statute to require a driver to submit to a chemical test in all accident cases resulting in death or serious injury to another person. It also provided immunity from liability to any medical personnel who perform the test.15
Similarly, a survey of many other jurisdictions throughout the United States with statutes that provide that “none shall be given” when a driver refuses to consent to a test demonstrates that statutory authorization of some kind is necessary for the compulsory withdrawal of blood upon a refusal. Included in this survey is the State of New Mexico, where that state’s Court of Appeals found that, “[t]he act of obtaining a search warrant to circumvent the statutory prohibition [against the giving of a test upon a refusal] * * * is unavailing,” and held that the implied consent statute under consideration contained no exception for a search for a driver’s blood alcohol content. State v. Steele, 93 N.M. 470, 601 P.2d 440, 441 (Ct.App.1979). The court invited the Legislature to write an exception into the law and refused “to encroach upon the legislative prerogatives by judicial fiat or, even, by applying constitutional exceptions to statutes specifically denying such exceptions.” Id. The Legislature reacted. New Mexico’s present refusal statute contains a specific exception for the issuance of a search warrantauthorizing chemical tests upon a finding of probable cause that a person was driving under the influence and caused the death or great bodily injury of another.16
Although this Court believes it unnecessary to continue to canvass the remaining states, we find the experience of the State of Tennessee particularly relevant. That state’s implied consent statute prohibits the admission of test results taken after a refusal, but contains a specific exception for the admissibility of evidence in criminal
[764 A.2d 1166]
prosecutions for aggravated assault or homicide by the use of a motor vehicle for blood drawn by “any means lawful,”17 including the warrantless seizure of blood based upon probable cause. Moreover, the states of Alaska,18 Arizona,19 Iowa,20 Florida,21 Indiana,22 Michigan,23 and Texas24 all have statutes specifically authorizing the forcible seizure of blood in DUI cases. Further, in three states, these statutes specifically were revised in response to judicial decisions barring the forcible seizure of blood. See Pena v. State, 684 P.2d 864 (Alaska 1984); Collins v. Superior Court, 158 Ariz. 145, 761 P.2d 1049 (1988); State v. Hitchens, 294 N.W.2d 686 (Iowa 1980).
Accordingly, a majority of this Court holds that under the existing statutory framework, consent is a condition precedent to admissibility. Further, the Chief Justice and I conclude that our holding in Timms furnishes direct authority for the requirement that a defendant give his or her consent in DUI, death resulting, cases before the results of blood tests may be admitted. The Chief Justice and I are not persuaded that we should revisit this holding to sustain the admissibility of blood evidence drawn pursuant to a search warrant.
We are of the opinion that any changes to this mandate must emanate from the General Assembly. Further, we answer question two in the affirmative, and hold that in cases in which a motorist has refused consent, members of law enforcement are precluded from obtaining a search warrant to seize blood for alcohol or drug testing.
II
Question Three
Question three requires this Court to decide whether a determination that ? 31-27-2.1 precludes law enforcement personnel from obtaining a search warrant for the seizure of blood amounts to an unconstitutional limitation of the judicial authority to issue search warrants as provided in article 5 of the Rhode Island Constitution and G.L. 1956 ? 12-5-1.
To properly answer this question, we must construe still another portion of the General Laws, namely ?? 12-5-1 and 12-5-2, which deal with the issuance of search warrants. Section 12-5-1 provides that a search warrant may be issued by any judge of the District Court and that “[n]othing contained in this chapter shall be so construed as to restrain the power of the justices of the supreme or superior courts by virtue of ? 8-3-6 to issue a search warrant.”25 However, the authority
[764 A.2d 1167]
for the issuance of a search warrant is found in ? 12-5-2, which provides:
“Grounds for issuance. ? A warrant may be issued under this chapter to search for and seize any property:
(1) Stolen or embezzled, or obtained by any false pretense, or pretenses, with intent to cheat or defraud within this state, or elsewhere;
(2) Kept, suffered to be kept, concealed, deposited, or possessed in violation of law, or for the purpose of violating the law;
(3) Designed or intended for use, or which is or has been used, in violation of law, or as a means of committing a violation of law; or
(4) Which is evidence of the commission of a crime.”
The only portion of ? 12-5-2 that is remotely relevant to this case is subsection (4), which authorizes the issuance of a warrant for the seizure of any “property” that is “evidence of the commission of a crime.” A survey of the remainder of our statutes discloses no authorization to issue a search warrant for the withdrawal and seizure of blood or other bodily fluids. The seizure of a suspect’s blood involves the use of a needle and the location and puncture of a vein to extract the fluid. Although not as physically intrusive as the forcible extraction of a prisoner’s stomach contents in search of evidence of a crime, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183, 190 (1952), a blood draw is nonetheless an intrusion beyond the body’s surface that affects one’s human dignity and privacy. Schmerber, 384 U.S. at 769-70, 86 S.Ct. at 1835, 16 L.Ed.2d at 919.26 Further, although the alcohol content of a motorist’s blood is relevant to the degree of intoxication in a DUI trial, we are not satisfied that one’s bodily fluid is “property” or evidence of the commission of a crime. We note that it is not the blood itself that is the “evidence of the commission of a crime,” but rather the test results that are relevant in a criminal trial. Thus, we are of the opinion that the General Assembly, by its enactment of ? 31-27-2.1, as well as the limited power to issue search warrants that has been conferred upon the judiciary by ? 12-5-2, has not specifically authorized the issuance of a search warrant for such a purpose. Moreover, we are ever mindful that the Rhode Island Constitution deals with search warrants only in the negative sense. Article 1, section 6, of the Rhode Island Constitution reads as follows:
“Search and seizure. ? The right of the people to be secure in their persons, papers and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but on complaint in writing, upon probable cause, supported by oath or affirmation, and describing as nearly as may be, the place to be searched and the persons or things to be seized.”
This Court has long recognized that the Superior Court is statutory in origin and derives its powers from statutes
[764 A.2d 1168]
duly enacted by the Legislature.27 This power cannot be extended by judicial interpretation, Boss v. Sprague, 53 R.I. 1, 162 A. 710 (1932), nor by a policy adopted by the Executive Branch of state government. The scope of the Superior Court’s warrant authority is delineated by the Legislature, in which all power not explicitly granted to another branch of governmentresides. Kass v. Retirement Board of the Employees Retirement System, 567 A.2d 358, 361 (R.I. 1989). The Superior Court has no inherent power to issue a search warrant, but instead exercises only those powers that are conferred by statute. Indeed, the General Assembly has not hesitated to extend the scope of the judicial power to issue search warrants by specific legislative action covering a wide range of subjects, including G.L. 1956 ? 11-19-24, which authorizes search warrants for gambling apparatus and paraphernalia; G.L. 1956 ? 11-34-4, authorizing the issuance of a warrant to search a house of prostitution; G.L. 1956 ? 19-26-13, authorizing the issuance of a search warrant to search the premises of a pawnbroker for stolen property; G.L. 1956 ? 30-9-11, authorizing the adjutant general of the national guard to obtain a warrant for the search and seizure of arms, ammunition, uniforms, or other military equipment belonging to the military; G.L. 1956 ? 3-12-4, authorizing the issuance of a search warrant for the search and seizure of any impure or adulterated liquors; G.L. 1956 ? 4-1-19, authorizing the issuance of a search warrant to search any place believed to be connected to the cruelty of animals; and finally, G.L. 1956 ?? 12-5.1-4 and 12-5.2-2, authorizing the interception of wire communications and the issuance of an order for the use of a pen register or telephone trap. Moreover, the General Assembly has authorized the seizure of a host of material by the state’s law enforcement officers, including fighting birds or animals, obscene material, hazardous waste, firearms, explosives, commercial fertilizer and seed, forgery and counterfeiting devices, property held out for sale by an itinerant vendor, shellfish taken in polluted waters, and driver’s licenses found to be in the possession of any person other than the licensee. Thus far, the Legislature has not acted to authorize the search and seizure of a person’s bodily fluids.
Finally, it should be noted that law enforcement officers generally have been allowed by both federal and state decisional law to search a suspect incident to a lawful arrest. Indeed, in Schmerber,the Supreme Court of the United States, in an opinion by Justice Brennan, held that an officer who had probable cause to believe that the defendant was operating an automobile while under the influence of alcohol could constitutionally require him to submit to the withdrawal of blood by a physician in a hospital, even though the defendant objected to the procedure. Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836, 16 L.Ed.2d at 920. The Court held that the warrant requirement was precluded by the emergent necessity to conduct the tests before the BAC was reduced by the passage of time to the point where it would constitute the destruction of evidence. Id. Therefore, the Court concluded “that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.” Id. From the point of view of the Fourth Amendment and the Fourteenth
[764 A.2d 1169]
Amendment, such an intrusion even over the objection of the defendant was not constitutionally forbidden. The Court did not discuss or consider whether a warrant would have been available under California law.
However, here we are confronted with the question of whether an officer, in reliance upon a warrant that was not specifically authorized by statute, may, under Rhode Island law, obtain a blood sample after the suspect has refused to consent to a chemical test. Assuming that Schmerber still represents the constitutional law of the United States, the warrant in this case would have been surplusage under federal requirements if, indeed, the officer had probable cause to believe that defendant was operating under the influence of a controlled substance.
However, the Chief Justice and I are of the opinion that the absence of a statute authorizing the issuance of a search warrant to obtain a blood sample or a sample of other bodily fluids places the question of our overturning Timms in a totally different light. Our Legislature has chosen to construct an elaborate requirement of consent, buttressed with an equally elaborate set of admonitions around theprocedure for obtaining a chemical test. These requirements, in addition to the absence of a statute specifically authorizing the issuance of a warrant to obtain such samples, leads us to conclude that Timms struck the appropriate balance with respect to Rhode Island law. Accordingly, we are convinced that to overrule Timms, as well as St. Jean, we would impermissibly involve ourselves in the enterprise of legislation. We would first be required to legislate the issuance of a warrant for a purpose not authorized by statute. In addition, we would be required to hold that this judicially authorized warrant would trump the various provisions set forth by the General Assembly requiring the consent of any suspect who may be subjected to a chemical test for breath, blood, or urine. Moreover, if such a test may be authorized by an officer without a warrant, is that officer also empowered to force a physician, nurse, or medical assistant to withdraw the sample against their will, in light of the fact that medical personnel are restricted by the statutes relating to a patient’s confidential health care information from disclosing information without a person’s consent. See ? 5-37.3-4. Medical personnel who ignore this requirement and draw blood from an unconsenting subject at the direction of a police officer may face a civil action and, pursuant to ? 5-37.3-4, possible fine and imprisonment.
Accordingly, we decline to accept the state’s invitation to venture into the realm of piecemeal legislation. We are mindful that this Court previously has held that the consent requirement was designed to avoid confrontation between a suspect and an officer who might wish to require him or her to submit to a chemical test. State v. Locke, 418 A.2d 843 (R.I.1980). Consequently, even though the Federal Constitution may not require a warrant to authorize an officer to compel a suspect to submit to a blood test as long as the officer has probable cause to believe that the suspect was driving while impaired, a byproduct of leaving enforcement of this decision to an officer unaided by a warrant would be to create many dangerous and unintended consequences that should be dealt with and prevented bylegislative enactment, not by judicial fiat. In Schmerber, the United States Supreme Court merely decided the lengths a state might go without violating the Federal Constitution. Therefore, the wisdom and framework for requiring tests and implementing testing procedures should properly be left to the Legislature, which as set forth in Timms has indicated its choice.
Accordingly, we conclude that ? 31-27-2.1 precludes law enforcement officials from obtaining a warrant to seize blood, and further, that this prohibition in no way unconstitutionally limits the authority of the judiciary to issue warrants.
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The authority to issue warrants emanates from the General Assembly, and the General Assembly has not seen fit to vest the Superior Court with that power.
CONCLUSION
For the reasons stated herein, we answer the certified questions as follows:
1. The Chief Justice and I would answer question one in the affirmative.
2. We answer question two in the affirmative and hold that ? 31-27-2.1 does preclude members of law enforcement from obtaining a judicially authorized search warrant to seize blood from a defendant who has refused to consent to such test.
3. We answer question three in the negative, because the judicial power to issue warrants is derived from the General Assembly, and the General Assembly has not vested the District Court or Superior Court with the power to issue a search warrant for the seizure of blood.
Justice Flanders concurs in our answer in question two and question three which set forth the judgment of the Court.
WEISBERGER, Chief Justice concurring.
I concur completely in the opinion written by Justice Goldberg, not only in respect to her conclusions, but also in respect to the rationale of that opinion.
I write separately only to indicate that our dissenting justices have expended more than twenty pages of enunciation of policy that could have been implemented by less than a paragraph of legislation had the General Assembly been inclined so to provide.
I do not disagree that sound policy would support legislation that would enable a police officer to obtain a warrant for the production of a blood sample in the event that he or she had probable cause to believe that a suspect committed a felony by taking the life or seriously injuring a human being while under the influence of alcohol or a controlled substance. The sad fact is that G. L. 1956 ? 12-5-2 simply does not authorize the issuance of such a warrant.
The dissenters eloquently argue that common sense should dictate that the consent of one who has committed the crime of driving under the influence of drugs or a controlled substance resulting in death should not be required as a condition precedent to obtaining a blood sample by a physician or qualified medical technician for the purpose of testing the content of that blood. I would agree that common sense would support such an outcome. However, the incontrovertible truth is that our felony statutes, G.L. 1956 ?? 31-27-1 and 31-27-2.2, do not contain such a statement. Further, the provisions of G.L. 1956 ? 5-37.3-4 specifically prohibit the release of such medical health care information in the absence of written consent of the patient or his or her authorized representative. A close reading of the exceptions provided under ? 5-37.3-4(b) discloses no provision for release of the results of a blood test obtained pursuant to a judicial warrant.
I sincerely wish that our statutory provisions in chapter 27 of title 31 and in chapter 37.3 of title 5 would authorize the obtaining of a blood sample or other chemical tests of breath and body fluids when probable cause exists to believe that a suspect has committed vehicular homicide. The plain fact is that our statutes make no such provision. All of the oratory in the dissent cannot amend these statutes to achieve the desired purpose. Only the General Assembly has this power.
I believe that the statements of policy and reason set forth in the dissent have considerable merit. However, these statements should be addressed to the Legislature and not to this Court. An examination of the relevant statutes indicates that there is a significant tension evidenced by our statutory structure between the objective
[764 A.2d 1171]
of protecting the confidentiality of persons accused of a crime (particularly matters relating to the disclosure of health care information or requiring such person to submit to chemical tests of breath and bodily fluids), and the desire to prosecute for serious criminal offenses. The result is, as we stated fourteen years ago in State v. Timms, 505 A.2d 1132, 1135-36 (R.I.1986), that no person accused of driving so as to endanger resulting in death, wherein the alcoholic content of the person’s blood would be a relevant factor in determining his or her ability to drive safely could be subjected to a blood test without that person’s consent. I agree that the feeble civil remedy provided for refusing the chemical test is an insufficient disincentive for such refusal when one is accused of vehicular homicide. See ? 31-27-2.1. I would urge the General Assembly to amend the law so that it might read as the dissenters would have it read.
However, I do not believe that the members of this Court have the power to torture the language of these various relevant statutes in order to bring about the desired result. I would, therefore, respectfully ask the members of the General Assembly to review these statutes in the light of State v. DiCicco, 707 A.2d 251 (R.I.1998); State v. Timms, supra; and State v. St. Jean, 554 A.2d 206 (R.I.1989), as well as the various opinions in this case, and enact into law the suggestions contained in the dissenting opinion. I would certainly applaud such action, but do not have the power by decisional legerdemain to amend the existing statutes so as to achieve the dissenters’ objective.
Flanders, J., concurring in part and dissenting in part.
I concur with that portion of Justice Goldberg’s opinion that concludes that G.L. 1956 ? 31-27-2.1 bars police officers from obtaining a search warrant that would force a person suspected of driving under the influence, death resulting, to submit to a blood test for the presence of alcohol after that person has refused to consent to such testing upon the request of a law enforcement officer to do so. Section 31-27-2.1(a) provides, in pertinent part, that in these circumstances no blood test shall be given to a suspect unless he or she consents thereto (“none shall be given”). I do not believe that this restriction on police-initiated blood testing of motorists, in the absence of consent, pertains solely to situations involving mere misdemeanor charges of driving under the influence. Rather, I conclude that the Legislature meant what it said and did not intend to permit the police to circumvent the various procedural and other safeguards for such testing that are set forth in ? 31-27-2 by allowing the police to obtain a search warrant authorizing such testing despite the suspect’s refusal to consent to the officer’s request that he or she voluntarily submit to such testing. Moreover, for the reasons indicated in Justice Goldberg’s opinion, I do not believe that this legislative limitation on the ability of the police to obtain search warrants violates any applicable separation-of-powers principles.
I also agree, however, with Justice Bourcier’s analysis of the scope of ? 31-27-2(a). But for the Legislature’s enactment of ? 31-27-2.1 and this Court’s decision in State v. Timms, 505 A.2d 1132(R.I.1986) and its progeny, I would be inclined to agree that the consent and testing provisions of ? 31-27-2 are, by their terms, applicable only in misdemeanor prosecutions for driving under the influence, and have no application whatsoever to felony prosecutions for driving under the influence, death resulting. But, in my judgment, this issue becomes a moot point because I also agree that ? 31-27-2.1(a)’s “none shall be given” language is not so limited, on its face, to license-revocation proceedings or to misdemeanor prosecutions. Rather, according to State v. Berker, 120 R.I. 849, 391 A.2d 107 (1978), it is ? 31-27-2.1(a)’s implied-consent provisions that are limited to license-revocation proceedings; but the statute’s mandate of no
[764 A.2d 1172]
blood testing without consent (“none shall be given”) applies whenever a motorist has refused to submit to the ? 31-27-2 tests ? regardless of whether the police ultimately prefer any charges or initiate any proceedings against the motorist who has refused to submit to the requested testing. Thus, ? 31-27-2.1(a) indicates that no blood testing shall occur if consent is not obtained from “[a]ny person who operates a motor vehicle within this state [who] * * * 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.” In that case, “none shall be given” ? irrespective of whatever particular misdemeanor or felony charge(s) may or may not eventuate in any given case.28 Because ? 31-27-2.1 is more specific than G.L. 1956 ?? 12-5-1 and 12-5-2 (the general statutes authorizing the issuance of search warrants), I construe ? 31-27-2.1(a)’s “none shall be given” directive asconstituting an exception to the more general search-warrant statutes ? assuming, without deciding, that a warrant authorizing the seizure of a person’s blood to test for the alcohol content therein would even fall within the scope of that statute, given its apparent property-seizure limitations. Although this issue is not before us and has not been properly presented for our decision, it is one that, as Justice Goldberg’s opinion elucidates, raises very difficult and troubling questions about the propriety of issuing search warrants at all to seize a person’s blood.
Moreover, there is a further reason why the use of a search warrant to compel a suspect to submit to a blood test against his or her will may be problematic under our state Constitution. Under the Fifth Amendment to the United States Constitution, “[n]o person * * * shall be compelled in any criminal case to be a witness against himself * * *.” The comparable provision in our state Constitution, however, contains different and potentially more expansive wording: article 1, section 13, of the Rhode Island Constitution entitled “Self-crimination,” provides that “No person in a court of common law shall be compelled to give self-criminating evidence.” Thus, while the Fifth Amendment is limited to a prohibition against compelling persons in any criminal case to be a witness against themselves, the bar against compulsory self-incrimination in Rhode Island’s Declaration of Rights arguably provides broader protection by precluding the government not just from compelling people to be witnesses against themselves but also from compelling them “to give self-criminating evidence.” R.I. Const. art. 1, sec. 13. Cf. Commonwealth v. Mavredakis, 430 Mass. 848, 725 N.E.2d 169, 178 (2000) (comparing the textual differences between Massachusetts Declaration of Rights, art. 12, which states “No subject shall * * * be compelled to accuse, or furnish evidence against himself,” and the Fifth Amendment, and noting that “[t]he text of art. 12, as it relates to self-incrimination, is broader than the Fifth Amendment,” citing Opinion of the Justices, 412 Mass. 1201, 591 N.E.2d 1073 (1992), in which the Supreme Judicial Court advisedthe Massachusetts Senate that admitting evidence of a defendant’s refusal to consent to a breathalyzer test at a criminal trial would violate art. 12, in contradiction to the United States Supreme Court’s decision in South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 923, 74 L.Ed.2d 748, 759 (1983)).
Although previous Rhode Island judicial decisions have refused to differentiate between
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the standard to be applied under article 1, section 13, and the one that applies under the Fifth Amendment to the Federal Constitution, see, e.g., State v. Bertram, 591 A.2d 14, 21-22 (R.I.1991) (refusing to deviate from the Fifth Amendment test when analyzing the validity of compelled handwriting exemplars under article 1, section 13, of the Rhode Island Constitution), no Rhode Island Supreme Court decision yet has examined the potentially critical difference in the wording of these two constitutional provisions and its arguable significance in cases in which the government requires a suspect “to give self-criminating evidence” that is not in itself of a communicative or a testimonial nature. R.I. Const. art. 1, sec. 13.
In other words, unlike the Federal Constitution, the Rhode Island Constitution does not seem to incorporate, by its terms, an express testimonial or a communicative limitation on the compelled giving of evidence by a person. Thus, the possibility exists that the framers drafted article 1, section 13, in such a manner as to provide for a broader ban on the government’s compelling of self-incriminatory acts than the Fifth Amendment analogue to the United States Constitution (at least as that clause has been construed most recently by a majority of the United States Supreme Court). For example, such acts as forcing suspects and witnesses to give their blood, handwriting exemplars, DNA samples, fingerprints, or documents, or otherwise to assist the prosecution “in a court of common law” by the compulsory giving of evidence of a “self-criminating” nature may fall within the literal terms of article 1, section 13,regardless of whether the compelled giving of such evidence is “testimonial” in nature. See, e.g., Doe v. United States, 487 U.S. 201, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988).
Moreover, in a recent concurring opinion authored by Justice Thomas (joined by Justice Scalia), in the United States Supreme Court case of United States v. Hubbell, 530 U.S. 27, ___, 120 S.Ct. 2037, 2050-54, 147 L.Ed.2d 24, 43-48 (2000), Justice Thomas noted that, historically, “substantial support [exists] for the view that the term `witness’ [in the Fifth Amendment] meant a person who gives or furnishes evidence, a broader meaning than that which our case law currently ascribes to the term.” Id. at ___, 120 S.Ct. at 2050, 147 L.Ed.2d at 44. Justice Thomas specifically observed that during the debate over the ratification of the Federal Constitution Rhode Island was one of four states that proposed a bill of rights that would grant citizens a right against any governmental compulsion “to give evidence” ? regardless of whether, in doing so, the person would “be a witness” against himself or herself. Id. at ___, 120 S.Ct. at 2052, 147 L.Ed.2d at 46 (citing the Rhode Island Proposal of May 29, 1790). Compare Boyd v. United States, 116 U.S. 616, 634-35, 6 S.Ct. 524, 534-35, 29 L.Ed. 746, 752 (1886) (holding that the Fifth Amendment protected a suspect against the compelled production of books and papers), with Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39, 54 (1976) (permitting the government to force a person to furnish incriminating documentary evidence and protecting only the “testimonial” aspects of that transfer); but see Hubbell, 530 U.S. at ___, 120 S.Ct. at 2048, 147 L.Ed.2d at 41-42 (barring government from indicting an immunized witness based upon the documents produced by the witness in response to a subpoena duces tecum).
In any event, in a case properly preserving this issue, I would remain open to the argument that the Rhode Island Constitution (article 1, section 13) should be construed more broadly than the FederalConstitution in this respect because of the Rhode Island framers’ failure to adopt the Federal Constitution’s “witness against himself” language. U.S. Const. Amend. V. Arguably, the broader terminology of the Rhode Island Constitution ? precluding a person from being compelled “to give self-criminating evidence” ? means that no
[764 A.2d 1174]
“testimonial” or “communicative” limitation exists whenever the government attempts to compel a person to provide it with “self-criminating evidence,” for use “in a court of common law.” R.I. Const. art. 1, sec. 13. Under this interpretation, the government could be barred from compelling suspects to give handwriting exemplars, blood, fingerprints, DNA samples, or other such “self-criminating” evidence if they objected to doing so. But because this issue is not now before us, I would leave this question for this Court to address in another case that raises it. Suffice it to say for now that, in cases like this one, construing ? 31-27-2.1 to preclude nonconsensual seizures of a person’s blood for drug-testing purposes avoids the necessity for us to decide the difficult constitutional issues described above ? as well as the other legal and pragmatic problems alluded to in Justice Goldberg’s opinion ? if the police were entitled to compel a person to give them a blood sample after the person has refused a police officer’s request to submit to such testing voluntarily and after the police have sought and obtained a search warrant for that purpose.
For these reasons, I would answer question one in the negative, question two in the affirmative, and question three in the negative.
BOURCIER, Justice, with whom Justice Lederberg joins, dissenting.
I would respond in the negative to questions one and two and need not answer the third question that has been certified to us from the Superior Court for the reasons hereinafter set out.
I
Certified Question 1
“In view of State v. Timms, 505 A.2d 1132 (R.I.1986), should R.I. Gen. Laws ? 31-27-2(c) be interpreted to preclude, in a case involving an alleged violation of R.I. Gen. Laws ? 31-27-2.2 (driving under the influence, death resulting), the admission at trial of the results of breathalyzer, blood or urine tests at trial, when the breath, blood or urine samples were seized without the defendant’s consent and pursuant to a judicially authorized search warrant?”
In a felony prosecution for driving under the influence of liquor or drugs, death resulting, pursuant to G.L. 1956 ? 31-27-2.2, I would not bar the admission of test results derived from the chemical analysis of a defendant’s breath, blood or urine when such samples were seized without a defendant’s consent but had been taken pursuant to a judicially authorized search warrant. I would not bar admission of that evidence based on the questionable dicta found in State v. Timms, 505 A.2d 1132 (R.I.1986), dicta that was later unceremoniously canonized in State v. St. Jean, 554 A.2d 206, 211 (R.I.1989), without any mention whatsoever of Timms, and without the benefit of any meaningful judicial analysis. I read the plain language of ? 31-27-2(c) as only barring the admission of nonconsensual chemical test results in misdemeanor prosecutions under subsection (a) in that particular statute.
First, the Timms case. That case, simply put, created bad law out of mere dicta. Timms, it should be noted, had been charged only with two counts of driving so as to endanger, death resulting, in violation of ? 31-27-1. Id. at 1133. Nothing in that particular statutory offense required any proof that Timms had operated her vehicle while under-the-influence of any intoxicating liquor or drugs. Section 31-27-1 requires proof only that an operator has operated his or her vehicle in reckless disregard forthe safety of others. See State v. Bettencourt, 723 A.2d 1101, 1106 (R.I.1999). Following her Superior Court jury trial and conviction, Timms challenged that conviction in her appeal to this Court.
In her appeal, she questioned only a single evidentiary trial ruling made by the trial justice. That evidentiary challenge concerned only whether the two police department
[764 A.2d 1175]
consent forms that she earlier had signed, consenting to the taking of a sample of her blood for chemical analysis, sufficiently complied with the particular consent form prescribed in G.L. 1956, ? 5-37.3-4 of the Confidentiality of Health Care Information Act. Timms, 505 A.2d at 1135. Thus, her sole challenge to her conviction concerned only the admissibility of her medical record in light of the requirements of the Confidentiality of Health Care Information Act. Therefore, nothing in Timms’s appeal called for the Court in that case to undertake its hypothetical analysis concerning the issue of consent as it applied to the taking and subsequent testing of her blood. There was neither logical reason nor relevant purpose for this Court in that appeal to have indulged in speculation about whether, if Timms had been prosecuted for violation of either ? 31-27-2 or ? 31-27-2.2 instead of ? 31-27-1, that her prior consent to the taking of a sample of her blood in either of those particular prosecutions would have been required. It is important to note that a defendant’s required prior consent to the chemical analysis of a sample of his or her blood, breath or urine is provided for only in ? 31-27-2. That statute, by its very wording, applies only to misdemeanor prosecutions for violation of ? 31-27-2(a) and was never intended by the Legislature to be impliedly applicable also in felony prosecutions pursuant to ? 31-27-1 (driving so as to endanger), or ? 31-27-2.2 (driving under the influence, death resulting). Thus, consideration of those statutes was not relevant to the single appellate issue that had been raised by Timms in her appeal and was not in any way necessary to the determination of that issue in her appeal.
As I read Timms, it becomes obvious that its dicta misadventure was prompted by the Court’s obvious failure to comprehend why the Legislature specifically provided for a suspected driver’s prior consent to the chemical testing of his or her breath, blood or urine only in a misdemeanor ? 31-27-2 prosecution, and did not provide for that same prior consent and testing in a felony ? 31-27-1 prosecution for reckless driving, serious injury resulting, or in a ? 31-27-2.2 driving under the influence, death resulting prosecution. That perplexity is evident from the following excerpt from Timms:
“Both statutes concern the same subject matter, namely driving in a manner so as to threaten public safety. Furthermore, in addition to the already-enacted ?? 31-27-1 and 31-27-2, the Legislature subsequently created ? 31-27-2.2, `Driving under the influence of liquor or drugs, resulting in death.’ The consent safeguards in ? 31-27-2.2 are also not explicitly in its text, yet the Legislature would not have enacted two separate driving-under-the-influence sections, intending that the consent safeguards apply only to one.” Timms, 505 A.2d at 1136.
That comment, I believe, exposes the Timms Court’s failure to appreciate that the chemical testing of a suspected operator’s breath, blood or urine was “designed deliberately to facilitate [a defendant's] conviction, [and] not to shield him” from prosecution and conviction. White v. Maryland, 89 Md.App. 590, 598 A.2d 1208, 1211 (1991) (quoting Brice v. State, 71 Md.App. 563, 526 A.2d 647, 649 (1987)). Indeed, the Timms Court actually and repeatedly refers to the “consent safeguards” as being intended to protect the suspected drunk driver. Such references reflect, I believe, that the Timms Court misapprehended for whom the alleged statutory “consent safeguards” were intended, a misapprehension that today only two justices of this Court continue to espouse.
I believe that this Court should no longer regard Timms as valid judicial precedent, and that Timms should be reversed. Justices Lederberg and Flanders join with me in that regard, and thus, on this matter, as we constitute a majority of this Court, State v. Timms is reversed. The
[764 A.2d 1176]
reversal of Timms does not, however, signal the end of this Court’s response to the first certified question posed to us. There remains for consideration, the ancillary inquiry posed to us in that question concerning whether, in a driving under the influence, death resulting prosecution, pursuant to G.L. ? 31-27-2.2, the test results of a defendant’s breath, blood, or urine sample taken without a defendant’s prior consent, but taken pursuant to a judicially authorized search warrant, later are admissible as evidence in that defendant’s trial.
With regard to this Court’s response to that portion of the inquiry posed to us in Certified Question One, Justice Lederberg and I would respond that chemical test results, derived from a sample of a non-consenting suspected operator’s breath, blood or urine, taken pursuant to a judicially authorized search warrant, would be admissible as evidence in a felony prosecution for driving under the influence, death resulting, pursuant to ? 31-27-2.2. In that regard, Justice Goldberg and the Chief Justice conclude that, in view of Timms, ? 31-27-2(c) does not permit, in a case alleging a violation of ? 37-27-2.2 (driving under the influence, death resulting) the admission at trial of the results of breathalyzer, blood or urine tests, when the breath, blood, or urine samples were seized without the defendant’s consent pursuant to a judicially authorized search warrant. Justice Flanders concludes that ? 31-27-2(c) applies only to misdemeanor prosecutions; therefore, he concurs with Justice Lederberg and myself that Timms does not bar the admission at trial of the results of breathalyzer, blood, or urine tests that were seized without the defendant’s consent via a search warrant. However, he believes that ? 31-27-2.1 does bar any such testing or seizure of the defendant’s blood, breath or urine without a defendant’s prior consent.
I believe, as was said in State v. Bruskie, 536 A.2d 522, 524 (R.I.1988), that the “goal of legislation against drunken driving * * * is to reduce the carnage occurring on our highways attributableto persons who imbibe alcohol and then drive [,]” and the objective of those statutes is “to remove from the highway drivers who by drinking become a menace to themselves and to the public.”
This Court has often proclaimed that when interpreting legislative enactments, it does so with a view towards carrying out the intent and purpose of the particular legislation, and in doing so, gives the legislation “what appears to be the meaning that is most consistent with its * * * obvious purpose.” Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 290 (R.I.1993) (quoting Zannelli v. Di Sandro, 84 R.I. 76, 81, 121 A.2d 652, 655 (1956)). See also State ex rel. Town of Middletown v. Anthony, 713 A.2d 207, 210 (R.I.1998).
I believe that the majority’s response today, barring the chemical test results of a sample of a non-consenting suspected alcohol- or drug- impaired drivers’ breath, blood or urine in ? 31-27-1 and ? 31-27-2.2 felony prosecutions, serves to ignore and frustrate the Legislature’s clearly expressed intent and mandate found in ? 31-27-2. That statute, ? 31-27-2, only requires a suspected operator’s prior consent to chemical testing in misdemeanor no injury-fender-bender prosecutions, and not in felony prosecutions, pursuant to ? 31-27-1 and ? 31-27-2.2. Nothing can be clearer than the specific wording employed by the Legislature when enacting ? 31-27-2(b)(1). That section says loud and clear that its prior consent to chemical testing requirement applies only to “[a]ny person charged under subsection (a)” of ? 31-27-2, and subsection (a) specifically concerns only misdemeanor prosecutions.29 It states:
[764 A.2d 1177]
“31-27-2. Driving under influence of liquor or drugs. ? (a) Whoever operates or otherwise drives any vehicle in the state while under the influence of any intoxicating liquor, drugs, toluene, or any controlled substance as defined in chapter 28 of title 21, or any combination thereof, shall be guilty of a misdemeanor and shall be punished as provided in subsection (d) of this section.
(b)(1) Any person charged under subsection (a) of this section whose blood alcohol concentration is one-tenth of one percent (.1%) or more by weight as shown by a chemical analysis of a blood, breath, or urine sample shall be guilty of violating subsection (a) of this section. * * * (emphasis added)
(2) * * *
(c) In any criminal prosecution for a violation of subsection (a) of this section, evidence as to the amount of intoxicating liquor, toluene, or any controlled substance as defined in chapter 28 of title 21, or any combination thereof in the defendant’s blood at the time alleged as shown by a chemical analysis of the defendant’s breath, blood, or urine or other bodily substance shall be admissible and competent, provided that evidence is presented that the following conditions have been complied with:
(1) The defendant has consented to the taking of the test upon which the analysis is made. Evidence that the defendant had refused to submit to the test shall not be admissible unless the defendant elects to testify.” (Emphasis added.)30
I am unable to join with the majority of this Court who opine that chemical test result evidence of a defendant driver’s breath, blood or urine, taken following an incident in which that defendant’s vehicle has killed or permanently crippled some innocent person on our public highways, should be inadmissible and barred as evidence of impairment in the trial of the death-causing driver. The majority’s
[764 A.2d 1178]
“bar-all-prohibit-all” position serves but one senseless purpose, namely, to shackle our state prosecutors in their attempt to prosecute and convict defendants charged with felony violations of ? 31-27-1 and ? 31-27-2.2. It also serves, sub silencio, actually to revive and reinstate the Timms dicta rule, that for the past fourteen years only has coddled and insulated alcohol- and drug-impaired drivers from felony prosecution and conviction. Pursuant to what the majority does in this proceeding, those alcohol- or drug-impaired drivers who kill and maim innocent people can continue to escape felony prosecution simply by refusing to consent to an officer’s request to take a breath, blood or urine sample. In that event, the suspected felon then will be charged with failing to consent to give a breath, blood or urine sample for testing, a misdemeanor, the penalty for which will be a short license suspension and a small fine. That is a far cry from what the Legislature intended when it enacted stiff 10-year jail sentences for drivers convicted for violations of ? 31-27-1 and for no less than 5 and up to 15 years for convictions under ? 31-27-2.2.31
In his concurring opinion, the Chief Justice candidly acknowledges “that common sense should dictate that the consent of one who has committed the crime of driving under the influence of drugs or a controlled substance resulting in death should not be required as a condition precedent to obtaining a blood sample by a physician or qualified medical technician for the purpose of testing.” However, he then retreats from that position by adding that the “incontrovertible truth is that our felony statutes, ? 31-27-1 and ? 31-27-2.2, do not contain such a statement.” Indeed that is true, but is nothing more than a self-created truism. The undeniable truth is that within those very same statutes as enacted by the General Assembly there is absolutely no language providing for any condition precedent to obtaining a suspected blood sample and absolutely no language requiring a suspected driver’s prior consent for the taking of a sample of his or her blood, breath or urine for chemical testing purposes. Instead, and in fact, it was this Court, acting on its own initiative in Timms, that chose to judicially write into those statutes the very consent requirements that now plague us. Thus, all that really is needed now to correct that problem is for this Court to carry out the effect of our reversal today of Timms, and to do away with the judicially-created prior consent requirements that this Court created in that case. No legislation actually is necessary. This Court can simply take out what it put in, and without any further quibbling,the law would then be exactly what the Chief Justice concedes that it should be. In short, this Court, having created the suspected driver’s prior consent edict, now can ? and should ? rescind what it created.
Justice Goldberg’s opinion, in which the Chief Justice joins, appears to ignore the troubling implications that will flow from the opinion in response to Certified Question One, and seeks to justify their prior consent viewpoint in all cases with the aid of the Latin phrase “noscitur a sociis,”32 as well as by citing to what little remains of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). They embellish their Rochin cite with misplaced compassionate concern for those alcohol- or drug-impaired drivers who kill innocent people on our highways and who cause the carnage that our Legislature so deplores. They stress in their concern that even the
[764 A.2d 1179]
taking of a small sample of breath, blood, or urine from an alcohol- or drug-impaired driver would inflict a profound and lasting harm or would enhance the “real danger a cocktail of blood, needles and a resistant, intoxicated motorist presents to those who attempt to subdue the [alcohol or drug-laden] suspect in order to draw blood.”
It is difficult for me to accept the opinion that Rochin labels the simple procedure utilized in the taking of a blood sample from a chemically-impaired driver as a sort of medieval torture concocted in some dark medieval dungeon, and which law enforcement officials should never be permitted to utilize in attempting to prosecute an alcohol- or drug-impaired driver. Rochin, in fact, was virtually emasculated by the United States Supreme Court less than five years after it was decided. See Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). What Justice Goldberg and the Chief Justice inthis case today view as constituting a “cocktail of blood and needles,” the United States Supreme Court in Breithaupt views differently:
“Modern community living requires modern scientific methods of crime detection lest the public go unprotected. The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield. The States, through safety measures, modern scientific methods, and strict enforcement of traffic laws, are using all reasonable means to make automobile driving less dangerous.
“As against the right of an individual that his person be held inviolable, even against so slight an intrusion as is involved in applying a blood test of the kind to which millions of Americans submit as a matter of course nearly every day, must be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal hazards of the road. And the more so since the test likewise may establish innocence, thus affording protection against the treachery of judgment based on one or more of the senses. Furthermore, since our criminal law is to no small extent justified by the assumption of deterrence, the individual’s right to immunity from such invasion of the body as is involved in a properly safeguarded blood test is far outweighed by the value of its deterrent effect due to public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of the confusion of conflicting contentions.” Id. at 439-40, 77 S.Ct. at 412, 1 L.Ed.2d at 452-53.
The Supreme Court additionally noted that:
“due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of `decency and fairness’ that has been woven by common experience into the fabric of acceptable conduct. It is on this bedrock that this Court has established the concept of due process. The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors. Likewise, we note that a majority of our States have either enacted statutes in some form authorizing tests of this nature or permit findings so obtained to be admitted in evidence. We therefore conclude that ablood test taken by a skilled technician is not such `conduct that shocks the conscience,’ Rochin, supra, at 172[, 72 S.Ct. 205], nor such a method of obtaining evidence that it offends a `sense of justice,’ Brown v. Mississippi, 1936, 297 U.S. 278, 285-286, 56 S.Ct. 461, 464-465, 80 L.Ed. 682.” Breithaupt,
[764 A.2d 1180]
352 U.S. at 436-37, 77 S.Ct. at 410-11, 1 L.Ed.2d at 451-52.
I also question the misplaced emphasis in Justice Goldberg’s opinion upon the inability of the state’s appellate counsel to respond in detail to a hypothetical question posed at oral argument regarding the manner in which a suspected alcohol- or drug-impaired driver’s blood sample would be taken. Appellate counsel’s response, whatever it might have been, would have been of no consequence. The Legislature has long ago, proscribed the procedure to be employed in the taking of a suspected driver’s blood sample. In misdemeanor prosecutions under ? 31-27-2, there is a clearly established procedure set out for the chemical analysis of a suspected driver’s breath, blood or urine. That procedure requires such testing to be undertaken only with equipment approved by the director of the state Department of Health, and administered “by an authorized individual.” In addition, the driver who is suspected of being under the influence of alcohol or drugs must be afforded the opportunity to have an additional chemical test performed by a doctor or professional of his or her own choosing, and the officer arresting or so charging the person must notify the suspected driver of that right and afford him or her a reasonable opportunity to exercise that right. Refusal to permit that additional chemical test within a reasonable time would render inadmissible any evidence derived from the original test report.
In sum, I believe that such statutory safeguards as described above effectively answer the concerns of Justice Goldberg and the Chief Justice. They eliminate any potential risks associated with the administering of those chemical tests and further provide the suspected alcohol- or drug-impaired driver with a sufficient opportunity to take additional chemical tests in an environment and a mannersubstantially of his or her own choosing. While Justice Goldberg’s opinion expresses remarkable and compassionate, but certainly misplaced, concern for the rights of alcohol and drug-laden drivers on our public highways, I cannot help but observe that the rights of the general public to travel those same roads with some modicum of safety is almost completely ignored in their calculus.
Also ignored in that calculus is the unfortunate effect their response to question one will have on all future felony prosecutions of persons charged with driving under the influence resulting in death or in severe personal injuries to some unfortunate person or persons.
In light of what a majority of this Court today opines, the Legislature’s recently enacted, and much heralded, lowering of the statutory under the influence presumption from one tenth of one percent to one eighth of one percent effectively has been neutralized and essentially becomes useless. See P.L. 2000, ch. 264. The Legislature’s good intention in hopes of assisting state prosecutors to rid our highways of alcohol- and drug-impaired drivers causing the carnage on our public highways has been scuttled. All that a driver who is suspected of being impaired and who has caused a highway fatality need do to avoid conviction and imprisonment is to say “no” to an arresting officer’s request that he or she consent to the giving of a sample of his or her breath, blood or urine for purposes of the chemical testing. In that event, in the absence of an available eyewitness willing to testify at trial as to the manner of the defendant’s driving, the suspected alcohol- or drug-impaired driver, whose vehicle has just killed or maimed some innocent person or persons on a public highway, will avoid conviction and jail. His or her only punishment simply then will be a civil “tap on the wrist” for refusing to consent to the chemical testing procedure. That “tap on the wrist” could be but a short suspension of his or her license to operate and a small fine.
Justice Lederberg joins with me in concluding that breath, blood and urine chemical testing laws never were intended to
[764 A.2d 1181]
protect alcohol- or drug-impaired drivers whose impairment brings about and causes fatal highway collisions. We believe that such laws were intended instead to protect the public by enhancing the ability of state prosecutors to deal effectively with and to convict those particular drivers (White, 598 A.2d at 1211), and “to rid our highways of the drunk driving menace.” Brice, 526 A.2d at 649.
II
Certified Question 2
“Does the statutory language of RIGL 31-27-2.1, the Breathalyzer Refusal Statute, preclude members of law enforcement from obtaining a judicially authorized search warrant to seize a defendant’s blood for alcohol or drug testing?”
We are asked in this certified question to decide whether, in a prosecution for driving under the influence, death resulting, pursuant to ? 31-27-2.2, law enforcement officers are precluded by ? 31-27-2.1 from obtaining samples of a defendant’s breath, blood or urine pursuant to a judicially authorized search warrant, procured pursuant to G.L. ? 12-5-2, following a defendant’s refusal to consent to the taking thereof.
I would respond to that question in the negative. My reason for so doing, I believe, is dictated by our long-standing rule of statutory interpretation that posits when the language of a statute is clear and unambiguous this Court should not search beyond the statute for a different meaning because “[i]n such a case the statute declares itself.” Bouchard v. Price, 694 A.2d 670, 680 (R.I.1997) (Flanders, J., concurring). “[A] `court is not at liberty to indulge in a presumption that the Legislature intended something more than what it actually wrote in the law.’” In the Matter of the Civil Commitment of J.G., 322 N.J.Super. 309, 730 A.2d 922, 929-30 (Ct.App.Div.1999) (quoting Graham v. City of Asbury Park, 64 N.J.Super, 385, 165 A.2d 864 (Ct.Law.Div.1960), rev’d on other grounds, 69 N.J.Super. 256, 174 A.2d 244 (Ct.App.Div.1961), aff’d, 37 N.J. 166, 179 A.2d 520 (1962)). Additionally, I respond to the certified question in the negative because I believe that the legislative purpose and intent that prompted the enactment of ? 31-27-2.1 becomes readily apparent from its legislative origin and history, a genesis that is entirely separate and distinct from that of ? 31-27-2.2.
The concept of requiring consent first was conceived in 1959 when the Legislature amended ? 31-27-2. See P.L. 1959, ch. 101, ? 1. That amendment, as noted by the late Justice Kelleher in State v. Lussier, 511 A.2d 958, 959 (R.I.1986), allowed for the admission of evidence gained from the chemical analysis of a defendant’s breath, blood or urine sample in a ? 31-27-2 misdemeanor prosecution for driving under the influence. Admissibility of that evidence, however, was conditioned upon the defendant’s prior consent to the chemical testing procedure, and upon additional competent evidence being presented at trial “bearing on the issue of whether the defendant was in fact under the influence of intoxicating liquor.” Id.
The Legislature had envisioned its 1959 amendment to ? 31-27-2 as a valuable means of assisting city, town and state law enforcement officials to more expeditiously dispose of the great numbers of driving-under-the-influence cases coming into the various District Courts. That legislative aim, however, fell far short of accomplishing its intended goal, which was to encourage the entry of pleas by defendants in ? 31-27-2 misdemeanor prosecutions and thus avoid the necessity for a trial in those cases. However, the amendment provided no incentive for a defendant’s plea because it failed to provide any penalty for refusing to consent.
Seven years later, the Legislature once again took aim at curbing the escalating carnage on our public highways caused by drivers being under the influence of alcohol or drugs. In 1966, the Legislature
[764 A.2d 1182]
amended chapter 27 of title 31 by adding ? 31-27-2.1. See P.L. 1966, ch. 215, ? 1. That statute introduced for the first time in Rhode Island, a so-called driver’s “implied consent” law, declaring that any person operating a motor vehicle within the state is deemed to have given consent to the chemical testing of his or her breath, blood or urine.
Incorporated as part of that new implied consent law were statutory presumptions that presumed a defendant to have been operating under the influence if the chemical test performed indicated the presence of .10 percent or more, by weight, of alcohol in the defendant’s blood. Thus, for the first time in a prosecution for driving under the influence, that presumption alone could support a defendant’s conviction pursuant to ? 31-27-2. That implied consent law, and its testing procedure providing for the chemical analysis of a motorist’s breath, blood or urine, only could have been enacted and intended to aid and assist in the prosecution of misdemeanor violations for driving under the influence, pursuant to ? 31-27-2, because in 1966 there was no other then-existing statute that prohibited anyone from operating a motor vehicle in this state while under the influence of alcohol or drugs.
Thus, the Legislature, it must be noted, had a dual purpose for enacting ? 31-27-2.1 in 1966. The first and primary purpose, as discussed supra, was to assist city, town and state police departments in more effectively and expeditiously prosecuting and disposing of misdemeanor driving under the influence cases.33 Scores of such driving-under-the-influence cases had been constantly clogging thevarious District Court trial calendars, primarily because prior to the enactment of ? 31-27-2.1, expert medical opinion was required to be presented in the trial of such cases to prove the “under-the-influence” element in that misdemeanor offense and it was difficult to schedule and arrange for the presentation of that expert evidence from medical doctors. See, e.g., State v. Poole, 97 R.I. 215, 197 A.2d 163 (1964). By virtue of ? 31-27-2.1, however, the chemical test result of a defendant’s breath, blood, or urine sample was made admissible as evidence of the amount of alcohol in a defendant’s blood, and if it revealed an alcohol concentration equal to or exceeding one-tenth of 1 percent, that evidence could lead to a conviction if coupled with other competent evidence of the relationship of that percentage of alcohol upon the defendant’s ability to safely operate his or her vehicle.
Secondly, the Legislature anticipated that by making chemical test results admissible as proof of culpability, a defendant, after being tested and found to have the presumptive amount of alcohol in his or her blood, breath or urine, then would realize the futility and risk of insisting upon trial and incurring the attendant legal expenses and, instead, would readily opt to enter a plea. However, that legislative expectation never materialized. The Legislature in its 1966 enactment, although providing for chemical testing, made that testing procedure again subject to the defendant’s prior consent to be tested and neglected to provide for any criminal or financial penalty for those suspected drivers who refused to give their consent. Thus, with little incentive to consent, few defendants did consent. From 1966 onward, all will acknowledge that driving-under-the-influence cases escalated in numbers and simply languished in the District Courts.
In 1982, the Legislature, in hopes of “beefing up” the evidentiary effect of chemical testing result evidence in ? 31-27-2 misdemeanor prosecutions, and hoping to avoid unnecessary and time-consuming
[764 A.2d 1183]
trials in those misdemeanor cases, amended ? 31-27-2. See P.L. 1982, ch. 176, ? 1. That amendment deleted from ? 31-27-2 its previous requirement for additional competent evidence of intoxication in addition to the chemical test results in prosecutions pursuant to that statute, but again did little to assist in unclogging the logjam of misdemeanor driving-under-the-influence cases then pending in the District Courts.
In May 1983, the Legislature, obviously aware of, and now more alarmed by the escalating numbers of highway deaths and serious injuries being caused by alcohol- and drug-impaired drivers on our state highways, enacted two consecutive statutory amendments aimed at finally curbing that carnage. First, P.L. 1983, ch. 227, was enacted to amend section 1(b) of ? 31-27-2. That amendment provided for a definitive finding of intoxication and guilt if chemical test result evidence indicated a one-tenth of 1 percent or more blood alcohol concentration in a defendant’s blood. The language of the amendment provided:
“Any person charged under subsection (a) of this section whose blood alcohol concentration is one-tenth of 1% or more by weight as shown by a chemical analysis of a blood, breath or urine sample shall be guilty of violating subsection (a) of this section. This provision shall not preclude a conviction based on other admissible evidence.” P.L. 1983, ch. 227.
As a result of P.L. 1983, ch. 227, the necessity for prosecution expert testimony to establish and relate the effect of that percentage of alcohol to a defendant’s ability to safely operate his or her vehicle waseliminated. The second amendment enacted in May 1983, amended ? 31-27-2.1. See P.L. 1983, ch. 228. What divides this Court today in responding to Certified Question Two is the wording employed by the Legislature in one particular sentence in that amendment. That sentence reads:
“If such a person having been placed under arrest refuses upon the request of a law enforcement officer to submit to a test, as provided in section 31-27-2, as amended, none shall be given, but an administrative judge of the division of administrative adjudication, 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 21-28 of the general laws, or any combination thereof, 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 test 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.” P.L. 1983, ch. 228, ? 1.
It is clear to me that the Legislature intended the implied consent law originally enacted in 1966 for use only in misdemeanor prosecutions for driving under the influence, pursuant to ? 31-27-2. As noted supra, in 1966 there was no other statute that made driving while under the influence a criminal offense. So, out of necessity and plain common sense, the implied consent to chemical testing procedure enacted by the Legislature had nowhere else to go but into ? 31-27-2, particularly because the Legislature in 1982, by way of P.L. 1982, ch. 176, already had provided for the chemical testing procedure in misdemeanor prosecutions, pursuant to ? 31-27-2.
In 1983, the Legislature enacted P.L. 1983, ch. 228, and provided for the imposition of a financial penalty upon a defendant who refused to consent to chemical testing. In doing so, I believe that the Legislature envisioned that a suspected driver more
[764 A.2d 1184]
readily would opt to consent to a chemical test rather than incur the financial penalty that would result from his or her refusal to consent. Of course, any chemical testing still would have to be performed in accordance with the testing procedure provided for in ? 31-27-2.
Common sense mandates that the minor penalty that is required to be imposed upon a non-consenting defendant pursuant to ? 31-27-2.1 fits only into the misdemeanor offense that is proscribed in ? 31-27-2 and certainly does not fit into the felony offense proscribed in ? 31-27-2.2. I am hard-pressed to believe that the majority actually can believe that a small fine and short license suspension is a fitting penalty for a defendant’s refusal to consent in a driving under the influence, death resulting, felony prosecution, pursuant to ? 31-27-2.2, knowing that a refusal could deprive the state of its ability to prove the defendant’s guilt, and would allow that defendant to walk free and avoid a possible fifteen-year jail sentence.
I would also point out that the Uniform Vehicle Code and Model Traffic Ordinance, prepared by the National Committee on Uniform Traffic Laws and Ordinances, specifically excludes any requirement for a defendant’s prior consent to chemical testing in felony driving-under-the-influence cases in which death or serious injuries are involved. The Uniform Vehicle Code provides that a driver, when arrested in those felony cases, can be “compelled by a police officer to submit to a test or tests of driver’s blood, breath or urine to determine the alcohol concentration or the presence of other drugs.” Uniform Vehicle Code ? 6-210 ? “Chemical test of drivers in serious personal injury or fatal crashes” (1992).34

[764 A.2d 1185]
I conclude from the legislative history surrounding ? 31-27-1 (driving so as to endanger, death resulting); ? 31-27-2 (driving under the influence ? misdemeanor); ? 31-27-2.1 (refusal to submit to chemical test); ? 31-27-2.2 (driving under the influence of liquor or drugs resulting in death); and ? 31-27-2.6 (driving under the influence of liquor or drugs, resulting in serious bodily injury), that the Legislature intended to treat the alcohol- or drug-impaired driver who had just killed and/or permanently maimed some innocent person on a public highway quite differently than a misdemeanor driving-under-the-influence defendant, charged simply with erratic driving or who had been involved in a minor fender-bender collision involving no death or injuries.
In the usual run-of-the-mill misdemeanor case, pursuant to ? 31-27-2(a), the Legislature never intended to subject those hundreds of suspected drivers, who annually are charged, to costly and time consuming chemical testing without first giving their consent. The wording employed in ? 31-27-2.1, that “none shall be given,” was only intended to preclude any such chemical testing in those misdemeanor prosecutions, even if attempted pursuant to a judicially authorized search warrant. Like the Uniform Vehicle Code, I believe, however, that ? 31-27-2.1 has no application to felony prosecutions for driving-under-the-influence in which death or serious injuries have been inflicted. Had the Legislature ever intended for ? 31-27-2.1 to be applicable in those felony statutes, it certainly knew how to do so when enacting those felony statutes, yet it did not do so. This Court should not read into or judicially legislate into those statutes what the Legislature never intended. See Lopes v. Phillips, 680 A.2d 65, 69 (R.I.1996); Universal Winding Co. v. Parks, 88 R.I. 384, 391, 148 A.2d 755, 759 (1959).
As Justice Sutherland in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404, 57 S.Ct. 578, 587, 81 L.Ed. 703, 715 (1937), aptly noted, “[t]he judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation.” Justice Flanders, writing along similar lines some time ago in his dissent in Kaya v. Partington, 681 A.2d 256 (R.I.1996), observed what I believe bears repetition in this case. He said:
“[T]he reality is, when, as here, a statute is silent on the subject at issue, we judges have absolutely no clue about what result the Legislature would have intended had it ever considered the question presented, especially when we depart from the text of a statute and attempt to find some hidden legislative design or intent that answers a problem not resolved by what the Legislature actually said.” Id. at 264. He further explained:
“`For purposes of judicial enforcement, the `policy’ of a statute should be drawn out of its terms, as nourished by their proper environment, and not, like nitrogen, out of the air.’ * * * Our goal is to construe the statute as it is written and
[764 A.2d 1186]
not to divine sound public policy out of legislative silence, references to imagined legislative intentions, or our own predilections. As Justice Frankfurter once warned, `The search for significance in the silence of [the Legislature] is too often the pursuit of a mirage. We must be wary against interpolating our notions of policy in the interstices of legislative provisions.’
“The reason to be on guard is that when legislative silence is confronted, the temptation is omnipresent for * * * the court to intrude its own preferred policies into the law under the euphemistic banner of `filling in a legislative gap’ or `interstitial’ lawmaking.” Kaya, 681 A.2d at 267-68.
Here, it is beyond dispute that ? 31-27-1 and ? 31-27-2.2 are “legislatively silent” about whether a defendant in a felony prosecution pursuant to those statutes may refuse to consent to a chemical testing request ? or in the case of a refusal ? whether that test can be compelled by a judicially authorized search warrant. Accordingly, in the absence of any such prohibiting language in ? 31-27-1and ? 31-27-2.2, I believe that, pursuant to a judicially authorized search warrant, the state should be permitted to take a breath, blood or urine sample for purposes of chemical testing when a defendant, who is charged with a violation of either of those felony statutes, refuses to comply with a request for the taking and testing thereof.
Justice Lederberg concurs with me in the above and we would respond in the negative to Certified Question Two.
III
Certified Question 3
“If R.I.G.L. ? 31-27-2.1 does preclude law enforcement from obtaining a search warrant, is this an unconstitutional limitation on the judicial authority to issue search warrants as provided in Article 5 of the Rhode Island Constitution and Rhode Island General Laws 12-5-1?”
In light of my responses proffered to Certified Questions One and Two, any response to question three becomes unnecessary. However, because of the response proffered by the majority concerning G.L. 1956 ?? 12-5-1 and 12-5-2, I would simply point out that until the United States Supreme Court reverses its holding in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1286, 16 L.Ed.2d 908 (1966), and until this Court reverses its holding in State v. Locke, 418 A.2d 843 (R.I. 1980), a search warrant to seize a sample of a defendant’s breath, blood or urine still is lawfully permitted pursuant to ? 12-5-2, where probable cause exists. Section 12-5-2 permits the seizure of any property that is used “in violation of law, or as a means of committing a violation of law; or * * * [w]hich is evidence of the commission of a crime.” Section 12-5-2(3)(4).
I do not agree with the majority’s general statement that blood itself is not property and thus not evidence of the commission of a crime. Blood itself can, in many instances, be evidence of thecommission of a crime. In the real world, which certainly includes the State of Rhode Island, a bottle of liquor is property. It is property that can be the subject of larceny or embezzlement and is even taxed as property. Likewise, a cache of cocaine in someone’s pocket, car, or dwelling also is considered to be property. The fact that the liquor or drugs are ingested and used by someone in violation of law does not transform that property into non-property.
The majority, however, advances the problematic contention that because they are “not satisfied that one’s bodily fluid is property” or “evidence of the commission of a crime” it cannot be seized pursuant to ? 12-5-2. What that contention ignores, however, is that it is not the blood that is the evidence being sought by the search warrant, but instead the amount of alcohol or cocaine that is contained in, and is foreign property in the blood. That alcohol and that cocaine was “property” when it went into the defendant’s blood stream, and it is still property when later detected,
[764 A.2d 1187]
isolated and identified by chemical analysis. The bodily fluid or blood is not the evidence sought by the search warrant, it is instead the alcohol and illegal cocaine that is contained in the blood and which constitutes evidence of a defendant’s commission of the crime of driving-under-the-influence. Accordingly, ? 12-5-2 permits it to be seized from wherever that incriminating evidence reasonably can be found.
IV
Conclusion
For the reasons above set out, Justice Lederberg and I would respond to Certified Questions One and Two in the negative. Because of the nature of our response to those questions, we need not respond to Certified Question Three, but our response to that question reasonably might be indicated from our brief discussion relating to that question.

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Notes:
1. P.L. 1982, ch. 176, ? 1.
2. P.L. 1983, ch. 227, ? 1.
3. P.L. 1983, ch. 228, ? 1.
4. General Laws 1956 ? 31-27-2.2 provides, in pertinent part, that:
“(a) When the death of any person other than the operator ensues as a proximate result of an injury received by the operation of any vehicle, the operator of which is under the influence of any intoxicating liquor, toluene, or any controlled substance * * * the person so operating the vehicle shall be guilty of `driving under the influence of liquor or drugs, resulting in death.’
“(b) Any person charged with the commission of the offense set forth in subsection (a) shall, upon conviction, be punished as follows:
(1) Every person convicted of a first violation shall be punished by imprisonment in the state prison for not less than five (5) years * * *.”
5. Section 31-27-2(c) provides, in pertinent part, that:
“In any criminal prosecution for a violation of subsection (a) of this section, evidence as to the amount of intoxicating liquor, toluene, or any controlled substance * * * in the defendant’s blood at the time alleged as shown by a chemical analysis of the defendant’s breath, blood, or urine or other bodily substance shall be admissible and competent, provided that evidence is presented that the following conditions have been complied with:
(1) The defendant has consented to the taking of the test upon which the analysis is made.”
Section 31-27-2(a) provides that:
“Whoever operates or otherwise drives any vehicle in the state while under the influence of any intoxicating liquor, drugs, toluene, or any controlled substance as defined in chapter 28 of title 21, or any combination thereof, shall be guilty of a misdemeanor and shall be punished as provided in subsection (d) of this section.”
6. P.L. 1986, ch. 275, ? 1; P.L. 1986, ch. 433, ? 1; P.L. 1986, ch. 494, ? 2; P.L. 1986, ch. 508, ? 1; P.L. 1989, ch. 149, ? 1; P.L. 1990, ch. 329, ? 1; P.L. 1990, ch. 496, ? 1; P.L. 1991, ch. 65, ? 1; P.L. 1992, ch. 133, art. 37; ? 6; P.L. 1992, ch. 133, art. 94, ? 1; P.L. 1992, ch. 405, ? 1; P.L. 1992, ch. 418, ? 5; P.L. 1993, ch. 138, art. 26, ? 3; P.L. 1994, ch. 70, art. 35, ? 7; P.L. 1995, ch. 370, art. 14, ? 7; P.L. 1996, ch. 224, ? 1; P.L. 1996, ch. 263, ? 1; P.L. 1998, ch. 91, art. 1, ? 3; P.L. 1999, ch. 360, ? 1.
7. P.L. 1986, ch. 433, ? 1; P.L. 1986, ch. 508, ? 1; P.L. 1990, ch. 329, ? 1; P.L. 1994, ch. 70, art. 35, ? 7.
8. General Laws 1956 chapter 41 of title 31 was repealed by P.L. 1999, ch. 218, art. 2, ? 1. See G.L. 1956 ? 31-41.1-4, entitled “Schedule of violations.”
9. Section 31-27-2.1(a) provides that if a person refuses to submit to a test, “an administrative judge of the [traffic tribunal] * * * 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,” and a fine and license suspension will follow, the amount and length of which is determinate upon whether the driver had previously violated this statute.
10. General Statutes of Connecticut ? 14-227c (West 1999), entitled “Blood and breath samples following fatal accidents,” provides in part that:
“To the extent provided by law, a blood or breath sample may also be obtained from any surviving operator whose motor vehicle is involved in such [a fatal] accident. The test shall be performed by or at the direction of a police officer according to methods and with equipment approved by the Department of Public Safety and shall be performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the Commissioner of Public Safety. The equipment used for such test shall be checked for accuracy by a person certified by the Department of Public Safety immediately before and after such test is performed. If a blood test is performed, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical technician II, a registered nurse or a phlebotomist, as defined in subsection (m) of section 14-227b. The blood samples obtained from the surviving operator shall be examined for the presence and concentration of alcohol by the Division of Scientific Services within the Department of Public Safety.”
11. Me.Rev.Stat.Ann. subchapter IV of tit. 29-A (West 1996).
12. Me.Rev.Stat.Ann. tit. 29-A, ? 2528 (West 1996).
13. Vt.Stat.Ann.tit. 23, ? 1202(f) (1999).
14. N.H.Rev.Stat.Ann.tit. 21, ? 265:93 (1993).
15. Md.Code Ann., Transportation ? 16-205.1(c) (Michie 1999), “Circumstances under which chemical tests required; administration; liability.”
16. N.M.Stat.Ann. ? 66-8-111 (Michie 1998).
17. Tenn.Code Ann. ? 55-10-406(e) (1998).
18. Alaska Stat. ? 28.35.035 (1998), “Administration of chemical tests without consent.”
19. Ariz.Rev.Stat.Ann. ? 28-1321D.1. (West 1998).
20. Iowa Code Ann. ? 321J.10 (West 1997).
21. Fla.Stat.Ann. ? 316.1933(1) (West 1990); see State v. Slaney, 653 So.2d 422 (Fla.Dist.Ct. App. 1995).
22. Ind.Code ? 9-30-6-6(g) (1999).
23. Mich.Comp.Laws Ann. ? 257.625a(6)(b)(iv) (West 2000 Supp.), “a test shall not be given without a court order, but the peace officer may seek to obtain [such] a court order.”
24. Tex.Transp.Code Ann. ? 724.012(b)(2) (West 1999) provides that a peace officer shall require the taking of a person’s breath or blood specimen if “the person was the operator of a motor vehicle * * * involved in an accident that the officer reasonably believes occurred as a result of the offense [of DUI].”
25. General Laws 1956 ? 8-3-6, entitled “Justices as conservators of peace ? Powers in criminal cases,” provides that “[t]he justices of the supreme and superior court shall, by virtue of their office, be severally conservators of the peace throughout the state, and shall severally have the same power in criminal cases throughout the state that district courts have in their respective districts.”
26. Our dissenting colleagues have taken us to task because we have recognized that forcible seizure of blood from a prisoner by untrained law enforcement personnel gives rise to concerns about privacy, human dignity and the safety of the officer as well as the prisoner. The dissent has accused us of demonstrating an “apparent compassionate concern” for these “chemically-impaired drivers” who may be forced to suffer the “profound and lasting horror” of a nonconsensual blood draw. We respectfully disagree. It is the duty of this Court to decide cases based upon constitutional, statutory, and decisional law, rather than coddle those who drink and drive. We recognize that this task may be unpleasant and unpopular and may result in the exclusion of relevant evidence based upon perceived technicalities. However distasteful the result, it is not the province of this Court to invade the domain of the Legislature in order to create a more palatable result at the expense of individual liberty and privacy interests. Further, although it has excoriated the majority for concluding that blood may not be drawn without the prisoner’s consent, the dissenting opinion contains no suggestion or guidance relative to how, by whom, and under what circumstances a prisoner’s blood may be forcibly seized.
27. Article 10, section 2, of the Rhode Island Constitution sets forth the powers of the judicial branch of state government and provides, in relevant part:
“Jurisdiction of supreme and inferior courts ? Quorum of supreme court. ? The supreme court shall have final revisory and appellate jurisdiction upon all questions of law and equity. It shall have power to issue prerogative writs, and shall also have such other jurisdiction as may, from time to time, be prescribed by law. A majority of its judges shall always be necessary to constitute a quorum. The inferior courts shall have such jurisdiction as may, from time to time, be prescribed by law.” (Emphasis added.)
28. But note that G.L. 1956 ? 31-27-2.1(a)’s “none shall be given” mandate is only triggered if three factual preconditions are satisfied: (1) the motorist is placed under arrest; (2) the law enforcement officer requests the motorist to submit to any of the ? 31-27-2 tests; and (3) the motorist refuses to do so. In this case, all of these factual circumstances are present. Thus, we have no occasion to opine on whether, for example, a nonconsensual seizure of blood incident to a lawful arrest would be valid under Rhode Island law if the law enforcement officer did not first request the motorist to consent to the ? 31-27-2 tests but simply arranged for a sample of the motorist’s blood to be drawn for testing purposes with or without the motorist’s cooperation.
29. In July, 2000, the Legislature amended ? 31-27-2. Subsection (b)(1) now reads:
“Any person charged under subsection (a) of this section whose blood alcohol concentration is eight one-hundreths of one percent (.08%) or more by weight as shown by a chemical analysis of a blood, breath, or urine sample shall be guilty of violating subsection (a) of this section.” P.L 2000, ch. 264.
30. In State v. Robarge, 35 Conn.Supp. 511, 391 A.2d 184, 185 (App.Ct.1977), the Connecticut Appellate Court was confronted with the same prior consent issue under statutes almost identical to ours. The court there, correctly in my opinion, concluded that the failure to meet the statutory conditions for consent necessary for the admissibility of test samples in prosecutions under Connecticut General Statutes Sec. 14-227a(b) (operation of a motor vehicle while under the influence of intoxicating liquor or drugs) did not bar admission of blood sample test results in a prosecution under Sec. 53a-58a (negligent homicide with a motor vehicle). The court reasoned that to conclude otherwise would be wholly unsound in view of the clear language in Sec. 14-227a(b), applying the consent requirement only to violations of Sec. 14-227a(a), the general driving-under-the-influence statute. Id. The court there said:
“The claim of the defendant that the failure to meet the requirements of ? 14-227a(b) rendered the blood test results inadmissible is wholly unsound in view of the introductory clause, which reads `[i]n any criminal prosecution for a violation of subsection (a) of this section * * *.’ It is as clear as words can make it that the requirements of subsection (b) pertain only to prosecutions for the operation of a motor vehicle while under the influence of intoxicating liquor or drugs in violation of ? 14-227a(a). The defendant’s elaborate argument that the law should be otherwise should more appropriately be addressed to the legislature.” Robarge, 391 A.2d at 185.
Later that year, the Connecticut Supreme Court rejected the argument of a defendant charged with misconduct with a motor vehicle where he asserted that his blood sample should have been excluded because the taking and testing of the sample did not meet the consent requirements outlined in ? 14-227a(b). State v. Singleton, 174 Conn. 112, 384 A.2d 334, 336 (1977), cert. denied, 440 U.S. 947, 99 S.Ct. 1425, 59 L.Ed.2d 635 (1979). That court squarely held that “[b]y its express terms, the procedural [consent] requirements of [? 14-227a(b)] apply to any criminal prosecution for a violation of ? 14-227a(a) ? the offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both” and not to other vehicular violations such as the one with which defendant was charged. Id.
31. Indeed, the New Hampshire Supreme Court has held that a three-year license suspension could not be considered “punishment” sufficient to invoke a double jeopardy application. State v. Liakos, 709 A.2d 187, 191 (N.H. 1998).
32. Noscitur a sociis is defined as “[a] canon of construction holding that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it.” Blacks Law Dictionary 1084 (7th ed.1999). Its use is somewhat paradoxical because they contend there is nothing unclear in ? 31-27-2.2.
33. “As chemical testing has evolved into a much relied on prosecution tool, `implied consent’ laws have likewise evolved to defeat the drunk driver’s inclination to refuse to consent to such testing. Implied consent laws encourage submission to chemical testing by making automatic license suspension the cost of refusing to be tested.” 1 Essen-Erwin, Defense of Drunk Driving Cases, ? 4.01 at 4-5 (1998).
34. The majority, in support of their responses to the certified questions in this proceeding, have cited to several case holdings from other jurisdictions. Those case holdings interpret only a particular statute in a particular state providing for implied consent chemical testing procedures. The statutes that were interpreted in those cases, however, are totally inapposite to G.L. 1956 ? 31-27-2 and ? 31-27-2.1, our Rhode Island implied consent statutes.
For example, in State v. Bellino, 390 A.2d 1014 (Me.1978), cited in the majority opinion, the implied consent statute at issue in Maine provided for its provisions to be applicable in all criminal prosecutions for “violation of any of the provisions” in that state’s motor vehicle code. Id. at 1023. The New Hampshire statute construed in State v. Berry, 121 N.H. 324, 428 A.2d 1250 (1981), also cited by the majority, specifically provided for its implied consent provisions to be applicable in “any offense arising out of acts alleged to have been committed while * * * driving a motor vehicle while intoxicated.” Id. at 1251. (Emphasis added.) Those particular implied consent statutory provisions, like the statutes at issue in each of the other cases cited in the majority opinion, are totally different from each other and also completely different and distinguishable from our Rhode Island statute. The plain language of ? 31-27-2 specifically: makes chemical testing procedures applicable only in “any criminal prosecution for a violation of subsection (a)” (see ? 31-27-2(c)); pertains only to misdemeanor driving-under-the-influence violations (see ? 31-27-2(b)(2)); provides that the chemical testing procedure set out in ? 31-27-2 pertains only to “any person charged under subsection (a)” (see ? 31-27-2(b)(1)).
To realize the uniqueness of our Rhode Island statute, one need only to review the comprehensive analysis of the various implied consent statutes from each of the fifty states that is provided in the statutory appendix section in Volume 4 of the treatise by Essen-Erwin, Defense of Drunk Driving Cases (2000). That statutory review discloses that some states, such as Arizona, have implied consent statutes that are made applicable in any offense arising out of acts alleged to be in violation of the Motor Vehicle Code. In those states, if a defendant refuses to consent to chemical testing, no tests can be undertaken except pursuant to a search warrant. That statutory review also discloses that in some other states, implied consent provisions are by specific statutory mandate made applicable in all motor vehicle code violation prosecutions in which liquor or drugs are alleged to be involved. In yet others states, the implied consent statutes are restricted to misdemeanor prosecutions only, but again, one must be careful to note that in Maryland, for example (cited by the majority), the crim