State v. DiCicco
| Decision Date | 27 January 1998 |
| Docket Number | No. 97-118--C,97-118--C |
| Citation | 707 A.2d 251 |
| Parties | STATE v. John F. DiCICCO. A. |
| Court | Rhode Island Supreme Court |
Annie Goldberg, Aaron L. Weisman, Providence, John J. Mahon, for Plaintiff.
John J. Bevilacqua, Providence, for Defendant.
Before WEISBERGER, C.J., and LEDERBERG, BOURCIER and FLANDERS, JJ.
This case came before the Supreme Court on the certification of two questions of law by a justice of the Superior Court pursuant to G.L.1956 § 9-24-27 and Rule 72 of the Superior Court Rules of Civil Procedure. At issue are G.L.1956 § 31-27-2.2, "Driving under the influence of liquor or drugs, resulting in death," and § 31-27-2, "Driving under influence of liquor or drugs." The questions ask us to determine:
The defendant, John F. DiCicco, was arraigned on a three-count indictment on April 26, 1995, and charged with driving while under the influence, death resulting; driving so as to endanger, death resulting; and possession of marijuana. The defendant pleaded not guilty to each count and was released on bail. He subsequently filed a motion to sever the first count of the indictment, that which charged him with driving under the influence, death resulting, from the two remaining counts, and a justice of the Superior Court granted that motion on February 6, 1997. The two questions of law before us were certified on February 20, 1997. In conjunction with the certification order, the parties agreed to a statement of facts from which we derived the following recitation.
At approximately 9:15 p.m. on December 17, 1994, defendant was operating his employer's dog-kennel truck on the access road inside Lincoln Greyhound Park in Lincoln, Rhode Island. The road conditions were poor because of "pouring rain," and the overhead street light at the site of the accident allegedly was out. The defendant was traveling straight in his lane with his headlights and windshield wipers turned on. He was driving his truck at approximately forty miles per hour even though the posted speed limit was only twenty-five miles per hour. The defendant's vehicle struck a pedestrian, Maria Carlino, who died from the injuries she sustained in the accident.
Patrolman Casey Free (Free) of the Lincoln police, who had two years of experience in law enforcement, administered three field-sobriety tests to defendant at the scene of the accident. Specifically, Free asked defendant to perform the "horizontal gaze nystagmus," the "walk and turn," and the "finger to nose" tests. The testing took place on the roadway in the rain, and defendant was not asked his physical condition or whether there was any reason he could not perform the requested tasks. The defendant wears regular prescription eyeglasses and was wearing them at the time of the accident. At the end of these tests, Free thought defendant had performed poorly. These results were recorded in Free's police report, along with Free's observation that defendant had "glossy eyes" and that there was a strong odor of alcohol on his breath. Another police officer, Patrolman Philip Gould, also detected an odor of alcohol when he patted defendant down.
Blood samples were taken without defendant's consent pursuant to a search warrant. The results of tests on two blood samples, which had been taken at 1 a.m. and 1:30 a.m., indicated that defendant's blood alcohol content (BAC) was ".00% BAC or Negative." In his statement to the Lincoln police, defendant stated that his workday had begun at 5:30 a.m. on December 17, 1994, that he had had a "grinder" and a soda for lunch, and that he had consumed approximately four twelve-ounce bottles of beer around 4:30 p.m. The defendant weighed 210 pounds at the time of the accident.
The parties further agreed that using an average alcohol absorption rate of .015 percent per hour (calculated for a 160-pound person) and considering the evidence in the light most favorable to the state, the state can prove only that defendant's BAC was .05 percent or less at the time of the accident. With this background, we proceed to address the certified questions.
The first certified question asks whether a BAC of at least 0.10 percent is an essential element of the crime of driving under the influence of alcohol in § 31-27-2, or of the crime of driving under the influence of alcohol, death resulting, in § 31-27-2.2. The relevant sections of these statutes read as follows:
(Emphasis added.)
"It is well settled that when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996). Moreover, when we examine an unambiguous statute, "there is no room for statutory construction and we must apply the statute as written." In re Denisewich, 643 A.2d 1194, 1197 (R.I.1994). 1
The 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 in chapter 28 of title 21, or any combination thereof." Section 31-27-2(b)(1) offers specificity in respect to the methods of proof and the operational definition of these key words, and provides unequivocally that the determination of BAC through chemical tests "shall not preclude a conviction based on other admissible evidence." In State v. Lusi, 625 A.2d 1350, 1357 (R.I.1993), we pointed out that § 31-27-2 expressly allows the state "to supplement [BAC test] results with other evidence." Even though § 31-27-2.2 contains no such language, the well-known canon of statutory construction in pari materia dictates that similar statutes should be interpreted similarly. See, e.g., John Hancock Mutual Life Insurance Co. v. Harris Trust & Savings Bank, 510 U.S. 86, 101-06, 114 S.Ct. 517, 527-29, 126 L.Ed.2d 524, 540-44 (1993). This argument is especially compelling because §§ 31-27-2 and 31-27-2.2 use exactly the same language in proscribing driving "while under the influence of any intoxicating liquor, toluene, or any controlled substance as defined in chapter 28 of title 21, or any combination thereof." Moreover, most compelling in formulating our response is the fact that prior decisions of this Court clearly hold that a conviction under § 31-27-2.2 may rest on evidence other than a BAC level of 0.10 percent or more.
In State v. Benoit, 650 A.2d 1230, 1233 (R.I.1994), this Court observed that
"[i]n order to sustain a conviction under § 31-27-2.2(a), the state must produce sufficient evidence for a jury to conclude that the defendant's manner of operating his or her motor vehicle was a proximate cause of the victim's death and that the collision occurred while the defendant was legally intoxicated." (Emphasis added.)
Further, in State v. Sahady, 694 A.2d 707, 709 (R.I.1997), we held that the terms "intoxicated" and "under the influence," as used in G.L.1956 § 11-47-52, 2 were not unconstitutionally vague. After observing that "the...
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