State v. DiStefano

764 A.2d 1156, 2000 R.I. LEXIS 233, 2000 WL 1880245

• Court: Supreme Court of Rhode Island
• Decided: December 20, 2000
• Docket: 99-119-C.A.
• Status: Published

Opinions

OPINION

GOLDBERG, J.

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(e) 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 driven by 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 con-eluded 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.GemLaws § 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.GemLaws § 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?”

3. “If R.I.GemLaws § 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.GemLaws § 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 § 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 felony DUI 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 §§ 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 tuould not have enacted two separate dñving-under-the-influence sections, 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 pañ mateña 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 § 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 § 31^1-4, 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, “[ujnder 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 he 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 “[ajny 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 has no bearing upon the questions before us today. We respectfully disagree. In Berber, 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. Berber, 120 R.I. at 857, 391 A.2d at 112. It is important to note that the defendant in Berber 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 to a 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. Jen-bins, 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 a motor vehicle in this state, and applies to every arrest for DUI, whether it be felony or misdemean- or, 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 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 authority hospital 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 the 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 poliey 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 rebanee 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 bebef 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 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 statute does 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 suspect involved 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 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 stat-’ ute 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 exceptions 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 warrant authorizing 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 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 Texas ²⁴ 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. Superi- or 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 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 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 government resides. 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.

“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.)

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 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 the procedure 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 impermissi-bly 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 fight 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 uncon-senting 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 by legislative 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. 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.

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 *s=* ¡n tjje 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, 43 >-! ° * vO On m On _ y-t COO >4 ^ Ph . co r o ^ Lk> On '"d P H coo i-i vo ^ vo >-l P4 , t — * N> COo VO On VO - IT'

7 art. 35, § 7. ~-4 O ’'ci* ■T Os l On £3- ^ • OJ OJ OJ K) " vO coo w ON 4* ON NO ¶ — ( OO -• On t-A ^ P-Í >4 . COO

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 recer-tified 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 surgeiy 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.Slat.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.StatAnn. 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.Stal.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 courL 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: