Providence County Superior Court
For Plaintiff: Stephen A. Regine, Esq.
For Defendant: John B. Harwood, Esq.
Stephen Day (Defendant) asks this Court to dismiss this case based on the doctrine of collateral estoppel. Jurisdiction is pursuant to Rule 12(b)(2) of the Rhode Island Rules of Criminal Procedure. For the reasons set forth below, this Court grants Defendant's motion.
I Facts and Travel
On August 23, 2012, a Barrington police officer stopped Defendant after he observed Defendant's vehicle swerving and cross over the center divide. (Def.'s Ex. A, Appeals Panel decision, at 1-2.) At trial, the officer testified that he observed that Defendant had "bloodshot watery eyes, " "a pale face, " and "was sweating profusely." Id. at 2. He also testified that Defendant "had a strong odor of alcoholic beverage coming from his breath." Id. After asking Defendant to submit to a series of sobriety tests, the officer concluded that Defendant was operating a motor vehicle under the influence of alcohol. Id. at 3. He then placed Defendant under arrest and asked Defendant to submit to a chemical breath test, which Defendant refused. Id. at 3-4.
Subsequently, Defendant was charged with various roadway violations, including "Refusal to submit to chemical test, " pursuant to G.L. 1956 § 31-27-2.1, and "Driving under influence of liquor or drugs" (DUI), pursuant to § 31-27-2. Id. at 1; Barrington Police Summons. Defendant contested the refusal charge, and the matter proceeded to trial. Id. The trial judge sustained the refusal charge, and Defendant filed an appeal to the Rhode Island Traffic Tribunal Appeals Panel (Appeals Panel). Id. Defendant argued before the Appeals Panel that the State failed to prove by clear and convincing evidence that he was read his rights, as is required by § 31-27-3, "Right of person charged with operating under influence to physical examination, " and moved to dismiss the charge. Id. at 4. The Appeals Panel held that the State did not satisfy the statutory requirements of § 31-27-3 and dismissed the refusal charge. Id. at 9-10. The State then brought a DUI action against Defendant under § 31-27-2 at the Superior Court, and Defendant filed this motion to dismiss.
II Standard of Review
Rule 12(b)(2) of the Rhode Island Rules of Criminal Procedure states:
"The defense of double jeopardy and all other defenses and objections based on defects in the institution of the prosecution or in the indictment, information, or complaint other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment, information, or complaint to charge an offense shall be noticed by the court at any time during the pendency of the proceeding." Super. R. Crim P. 12(b)(2).
This rule allows a defendant to raise the double jeopardy defense by a pretrial motion. See State v. Shelton, 990 A.2d 191, 203 (R.I. 2010); State v. Thomas, 654 A.2d 327, 330 (R.I. 1995). If the motion is untimely, the defense of double jeopardy will be considered waived unless the trial justice permits an untimely, but otherwise proper, assertion of the defense. Shelton, 990 A.2d at 203; Thomas, 654 A.2d at 330; State v. LaPlante, 122 R.I. 446, 449, 409 A.2d 130, 132 (1979). "[T]he burden is on a defendant to show cause why relief should be granted notwithstanding the untimely assertion of the defense." State v. Lee, 502 A.2d 332, 334 (R.I. 1985) (citing State v. Sharbuno, 120 R.I. 714, 722, 390 A.2d 915, 920 (1978)).
On appeal, Defendant argues that this matter is barred by the doctrine of collateral estoppel. Specifically, Defendant argues that the State is collaterally estopped from relitigating the issue of whether Defendant was informed of his rights under § 31-27-3. Defendant contends that the Appeals Panel decided that the State failed to prove by clear and convincing evidence that Defendant was informed of his rights under this provision, and therefore, the State cannot relitigate this issue in the criminal matter. In response, the State ...