June 16, 2017
           June 16, 2017




                                                     Supreme Court

                                                     No. 2014-229-C.A.
                                                     (P2/12-1403A)



        State                     :

          v.                      :

 Francisco Pacheco.               :




    NOTICE: This opinion is subject to formal revision before
    publication in the Rhode Island Reporter. Readers are requested to
    notify the Opinion Analyst, Supreme Court of Rhode Island,
    250 Benefit Street, Providence, Rhode Island 02903, at Telephone
    222-3258 of any typographical or other formal errors in order that
    corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2014-229-C.A.
                                                                  (P2/12-1403A)
                                                                  (Dissent begins on Page 17)


                   State                      :

                     v.                       :

            Francisco Pacheco.                :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

       Justice Goldberg, for the Court. This case came before the Supreme Court on March 9,

2017, pursuant to an order directing the parties to appear and show cause why the issues raised in

this appeal should not be summarily decided.         In 2014, the defendant, Francisco Pacheco

(Pacheco or defendant), was before this Court on appeal from a judgment of conviction in the

Superior Court; the basis of this appeal was that the doctrine of collateral estoppel should have

barred the state from prosecuting a chemical breath test refusal under G.L. 1956 § 31-27-2.1.

After the initial oral argument, on November 10, 2015, the case was remanded to the Superior

Court for an evidentiary hearing on whether that issue was timely raised in Superior Court. On

July 21, 2016, the Superior Court trial justice found that good cause had been shown for the

delay. By order of this Court, the parties were permitted to file supplemental memoranda on the

substantive issue of collateral estoppel. After hearing the arguments of counsel and examining

the memoranda submitted by the parties, we are of the opinion that cause has not been shown

and that this case should be decided without further briefing or argument. We affirm the

judgment of the Superior Court.



                                               -1-
                                         Facts and Travel

         On December 28, 2011, at approximately two o’clock in the morning, after failing to stop

at a stop sign, Pacheco’s vehicle nearly collided with Warren Patrolman Patrick T. Sarasin’s

(Officer Sarasin) police cruiser.       Officer Sarasin, who was accompanied by Patrolman

Christopher Perreault (Officer Perreault), observed Pacheco’s vehicle turn onto Child Street in

Warren, Rhode Island. When the officers began to follow Pacheco, he abruptly turned around in

a parking lot, reversed direction, and sped away. Pacheco then failed to stop at a second stop

sign and proceeded into the parking lot of the Portuguese Soccer Club, at which point a foot-

chase ensued. Officer Sarasin was able to apprehend Pacheco after he tripped over a curb.

Pacheco struggled with the officer.

         As Officer Sarasin attempted to restrain Pacheco, he detected a strong odor of alcohol

and noted that Pacheco also was exhibiting slurred speech. After Pacheco refused to comply

with requests to stop resisting, he was sprayed with oleoresin capsicum spray—commonly

referred to as pepper spray—by Officer Perreault. Additional officers arrived, and Pacheco, who

continued to resist, was taken into custody. At the scene, Pacheco was asked to take a field

sobriety test and a preliminary breath test. He refused to do so.

         Pacheco was transported to the Warren Police Department (police department), where he

was permitted to use a decontamination sink to wash his face and eyes. He was placed in a

“breathalyzer room” and advised of his rights with respect to a request to undergo a chemical

breath test.1 Pacheco was uncooperative; he continuously stood up and attempted to walk away.

On each occasion, Pacheco had to be forcefully returned to his seat, and he was ultimately

handcuffed.      Pacheco refused to take a chemical breath test and likewise refused to sign any



1
    This colloquy is known as “Rights For Use at the Station.”
                                                -2-
related paperwork. The officers later located a small bag of marijuana in a pocket of Pacheco’s

pants. Pacheco was charged by criminal information with possession of marijuana in violation

of G.L. 1956 § 21-28-4.01(c)(2)(ii), second offense; driving under the influence of alcohol in

violation of G.L. 1956 § 31-27-2; simple assault in violation of G.L. 1956 § 11-5-3; resisting

arrest in violation of G.L. 1956 § 12-7-10; and a second offense of refusing a chemical breath

test (chemical refusal) in violation of § 31-27-2.1(b)(2). He was also cited with the following

infractions: refusal to submit to a preliminary breath test (preliminary refusal)2 in violation of

§ 31-27-2.3; failure to stop at a stop sign; and operating a motor vehicle without evidence of

insurance.

       On July 15, 2013, Pacheco’s traffic infractions were heard in the Rhode Island Traffic

Tribunal; Pacheco appeared pro se, and the Town of Warren also was unrepresented by counsel.

Officer Sarasin testified3 that he pulled Pacheco over for failing to stop at a stop sign.     He

recounted that he pursued Pacheco on foot and apprehended him after a struggle. After being

prompted by the magistrate, Officer Sarasin added that Pacheco also was charged with a

preliminary refusal. This was the extent of the evidence presented against Pacheco in the Traffic

Tribunal.    The magistrate dismissed the preliminary refusal infraction, concluding that the

appropriate evidentiary foundation had not been established.

       In the Superior Court, on the eve of trial, Pacheco sought to dismiss the second offense,

chemical refusal charge on the basis of collateral estoppel, arguing that, “[b]ecause the

2
  As discussed infra, a chemical refusal and preliminary refusal constitute two separate offenses
charged under different statutes. A preliminary breath test commonly occurs at the scene of the
traffic stop, whereas a chemical breath test is undertaken at the police station. A preliminary
refusal is an infraction; a second-offense chemical refusal is a misdemeanor.
3
  The transcript from the hearing lists an “Officer Patrick Harris” as the testifying officer.
However, it appears that this was done in error as the record indicates that the transcription of
“Harris” was phonetic.

                                              -3-
government failed in its first attempt to prove by clear and convincing evidence that the

defendant refused to submit to a chemical test at the time of the alleged incident, it is collaterally

estopped from trying [Pacheco] again on the same issue.” The defendant asserted that the state

failed to establish the requisite reasonable belief necessary to prove the preliminary refusal by

failing to present evidence that Officer Sarasin detected the odor of alcohol on defendant,

observed bloodshot or watery eyes, or exhibited a staggered walk. The trial justice denied the

motion, finding that it was untimely filed and that it lacked merit. The case proceeded to trial,4

and Pacheco renewed his motion to dismiss at the conclusion of trial, where it was again denied.

Pacheco was convicted by a jury of unlawful possession of marijuana and a chemical refusal.5

On May 29, 2014, he was sentenced to five months to serve on the second offense, chemical

refusal count. Pacheco appealed.

          On November 10, 2015, the case was remanded to the Superior Court by order of this

Court. State v. Pacheco, 128 A.3d 867 (R.I. 2015). We directed the Superior Court to conduct

an evidentiary hearing to determine whether defendant’s motion to dismiss on grounds of

collateral estoppel was timely under Rule 12(b)(2) and Rule 12(b)(3) of the Superior Court Rules

of Criminal Procedure.6 The Superior Court justice concluded that defendant’s motion was


4
 The DUI charge was severed from the other four charges by order of the Superior Court entered
on March 17, 2014.
5
  The jury returned a not guilty verdict on the assault count and was deadlocked on the resisting
arrest charge.
6
    Rule 12(b) of the Superior Court Rules of Criminal Procedure states, in pertinent part:

                          “(2) 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.


                                                 -4-
untimely filed but that there was good cause for the delay because a new attorney had been

assigned to defendant’s case after the initial attorney suffered a medical emergency.

Accordingly, on October 31, 2016, an order was entered in the Supreme Court assigning the case

to the show cause calendar.

       Before this Court, defendant argues that the state was collaterally estopped from

prosecuting the chemical refusal in the Superior Court because the facts at issue were decided in

the Traffic Tribunal. The defendant contends that, although the charges arise out of different

statutes, the state nonetheless must prove that the officer reasonably believed that the operator

was operating a motor vehicle while under the influence of alcohol or drugs. The state, while

conceding at oral argument that there was an identity of parties, contends that the question of

Officer Sarasin’s reasonable belief that defendant was operating under the influence was not

“actually litigated and determined” in the Traffic Tribunal because the charge was dismissed

based on a lack of evidentiary foundation. The state also notes that defendant twice refused a

breath test, constituting two distinct offenses, and that observations which occurred after the first

preliminary refusal, while certainly relevant to the second chemical refusal charge were

unrelated to the first charge heard in the Traffic Tribunal. Finally, the state directs our attention

to the procedural differences between the Traffic Tribunal and the Superior Court and suggests

that collateral estoppel in this context may be the wrong road to travel.




                       “(3) The motion shall be made no later than thirty (30) days
               after the plea is entered, except that if the defendant has moved
               pursuant to Rule 9.1 to dismiss, it shall be made within thirty (30)
               days after entry of an order disposing of that motion; but in any
               event the Court may permit the motion to be made within a
               reasonable time after the plea is entered * * *.” (Emphasis added.)
                                                -5-
                                            Analysis

       The issue before the Court involves two separate statutory enactments governing two

discrete offenses allegedly committed by an operator who refuses to submit to a breath test

examination. Section 31-27-2.3(a) governs preliminary refusals which are cognizable in the

Traffic Tribunal:

                       “When a law enforcement officer has reason to believe that
               a person is driving or in actual physical control of any motor
               vehicle in this state while under the influence of alcohol, the law
               enforcement officer may require the person to submit to a
               preliminary breath analysis for the purpose of determining the
               person’s blood alcohol content. The breath analysis must be
               administered immediately upon the law enforcement officer’s
               formulation of a reasonable belief that the person is driving or in
               actual control of a motor vehicle while under the influence of
               alcohol, or immediately upon the stop of the person, whichever is
               later in time. Any chemical breath analysis required under this
               section must be administered with a device and in a manner
               approved by the director of the department of health for that
               purpose. The result of a preliminary chemical breath analysis may
               be used for the purpose of guiding the officer in deciding whether
               an arrest should be made. When a driver is arrested following a
               preliminary breath analysis, tests may be taken pursuant to § 31-
               27-2.1. The results of a preliminary breath test may not be used as
               evidence in any administrative or court proceeding involving
               driving while intoxicated or refusing to take a breathalyzer test,
               except as evidence of probable cause in making the initial arrest.”

The preliminary breath test must be administered immediately after the officer forms his or her

reasonable belief or immediately after the officer stops the individual, whichever is later.

Section 31-27-2.3(a). A refusal to submit to a preliminary breath test gives rise to a traffic

infraction.   Section 31-27-2.3(b).   Enacting the sections at different times, the Legislature

carefully delineated that a preliminary refusal and a chemical refusal remain separate and distinct

offenses. When an operator fails a preliminary breath test, this fact may serve as evidence of

probable cause for the operator’s arrest, but the results are not admissible on the question of



                                               -6-
whether the operator was driving while intoxicated.      The results of the preliminary breath test

“may not be used as evidence in any administrative or court proceeding involving driving while

intoxicated or refusing to take a breathalyzer test, except as evidence of probable cause in

making the initial arrest”; however, a chemical breath test may be administered pursuant to § 31-

27-2.1 if a driver is arrested after a preliminary breath test analysis. Section 31-27-2.3(a). If the

operator fails the preliminary breath test, the officer has probable cause to arrest and request a

chemical breath test, but the preliminary results—whether the operator passed or failed—are

inadmissible in a subsequent trial for the separate offenses of driving under the influence or a

breathalyzer refusal. The state must prove all of the statutory criteria set forth for each of those

offenses. Thus, a preliminary breath test, while an important tool for law enforcement’s fight

against drunk driving, is of little utility for the prosecution of operating under the influence and

chemical breathalyzer refusal.

       Chemical breath test refusals are governed by § 31-27-2.1(a), the statute under which

defendant was criminally charged.7 That provision permits an officer to administer a chemical

breath test if he or she has “reasonable grounds to believe [that a] person [has] been driving a

motor vehicle within this state under the influence of intoxicating liquor, toluene, or any

controlled substance * * *.” Id. The officer is required to inform the person of his or her rights

and the consequences of refusing to submit. Section 31-27-2.1(b).        The defendant argues that

dismissal of the preliminary refusal infraction in this case precludes a subsequent prosecution for
7
  Pacheco was charged as a “second violation” offender, rendering the chemical refusal a
misdemeanor. G.L. 1956 § 31-27-2.1(b)(2). A second conviction of refusal to submit to a
chemical breath test results in a criminal charge, for which a defendant faces: “imprison[ment]
for not more than six (6) months[,]* * * a fine in the amount of six hundred dollars ($600) to one
thousand dollars ($1,000)[,]” and a driver’s license suspension “for a period of one year to two
(2) years.” Id. The defendant is also required “to perform sixty (60) to one hundred (100) hours
of public community restitution,” attend “alcohol and/or drug treatment,” and operate a motor
vehicle with an ignition interlock system. Id.

                                                -7-
refusal to take a chemical test because each statute requires that the officer have a reasonable

belief that the operator of the motor vehicle was operating under the influence prior to requesting

that the operator submit to a breath test. We disagree.

       When the Supreme Court is confronted with a motion to dismiss based on double

jeopardy or collateral estoppel, we invariably “engage[] in a de novo review, ‘with respect to

questions of law and mixed questions of law and fact involving constitutional issues * * *.’”

State v. Rodriguez, 917 A.2d 409, 413 (R.I. 2007) (quoting State v. Snell, 892 A.2d 108, 115

(R.I. 2006)). “The doctrine of collateral estoppel provides that ‘when an issue of ultimate fact

has once been determined by a valid and final judgment, that issue cannot again be litigated

between the same parties in any future lawsuit.’” State v. Gautier, 871 A.2d 347, 358 (R.I. 2005)

(quoting State v. Werner, 865 A.2d 1049, 1055 (R.I. 2005)). In order for collateral estoppel to

apply there must be: “(1) an identity of issues, (2) the previous proceeding must have resulted in

a final judgment on the merits, and (3) the party against whom collateral estoppel is asserted

must be the same or in privity with a party in the previous proceeding.” Id. (quoting Werner,

865 A.2d at 1055). Nonetheless, “we will ‘not apply the doctrine mechanically in situations in

which it would lead to inequitable results.’” Id. (quoting Foster-Glocester Regional School

Committee v. Board of Review, 854 A.2d 1008, 1017 (R.I. 2004)).

       This Court has had ample opportunity to address the application of the doctrine of

collateral estoppel in a criminal prosecution in the context of probation-revocation hearings. An

analysis of our case law in this analogous scenario is warranted. In State v. Chase, 588 A.2d 120

(R.I. 1991), we first considered whether a “finding of nonviolation at a probation-revocation




                                               -8-
hearing preclude[d] the state from relitigating” the same issues at trial.8 Id. at 121-22. Although

we noted that “a probation-revocation hearing is not part of a criminal prosecution and therefore

does not give rise to the full panoply of rights that are due a defendant at trial,” we held that the

state was collaterally estopped from litigating an issue that had been fully litigated during a

probation-revocation hearing. Id. at 122, 123. Nonetheless, we limited our holding in Chase and

declared that:

                 “[O]nly a specific finding on a material matter of fact fully
                 litigated at the probation-revocation hearing will collaterally estop
                 the state from attempting to prove the same fact at trial. A general
                 finding will not suffice, nor will a specific finding that was not
                 fully litigated unless the state had notice that the issue was to be
                 litigated fully at the hearing and had a fair opportunity to do so.”
                 Id. at 123 (emphasis added).

       What became known as the “Chase doctrine” began its road to abrogation in the case of

State v. Godette, 751 A.2d 742 (R.I. 2000) when the Court was called upon to examine the

differences in the two proceedings. In Godette, the defendant was notified pursuant to Rule 32(f)

of the Superior Court Rules of Criminal Procedure that he was being presented as a probation

violator, the basis of which was a charge of driving a vehicle without the consent of the owner.

Godette, 751 A.2d at 744. At the probation-revocation hearing, the prosecutor indicated that he

had amended the underlying offense to possession of a stolen vehicle. Id. The trial justice

erroneously refused to consider the amended charge, finding that the state did not comply with

Rule 32(f) in amending the notice. Godette, 751 A.2d at 744. The justice then concluded that

there was insufficient evidence to declare the defendant a probation violator because the state did

not prove that the defendant was driving the motor vehicle. Id. The same Superior Court justice



8
 We note that in this case, defendant moved to dismiss the charge, which renders his claim more
akin to claim preclusion in the context of res judicata than issue preclusion under principles of
collateral estoppel.
                                                 -9-
refused to dismiss the criminal charges against the defendant based on collateral estoppel,

declaring that the charge of possession of a stolen motor vehicle was different from the offense

set forth in the Rule 32(f) notice, driving without the consent of the owner, and therefore,

collateral estoppel did not apply. Godette, 751 A.2d at 745. The defendant appealed from the

denial of the motion to dismiss, and this Court declared that there was not an identity of issues

because “three additional factors must be considered: ‘first, the issue sought to be precluded

must be identical to the issue decided in the prior proceeding; second, the issue must actually

have been litigated; and third, the issue must necessarily have been decided.’” Id. at 746

(quoting State v. Hie, 688 A.2d 283, 285 (R.I. 1996)). We further recognized that the standard at

a probation-violation hearing is “whether a defendant has failed to keep the peace and to remain

on good behavior, which he or she must do in order to stay on probation.” Id. at 745 (quoting

Hie, 688 A.2d at 284). A few months later, we reaffirmed our holding in Godette in State v.

Znosko, 755 A.2d 832 (R.I. 2000). Id. at 835 (“[A] showing that the defendant has failed to keep

the peace and to remain on good behavior is sufficient to establish a probation violation.” (citing

Godette, 751 A.2d at 745)).

       In Gautier, 871 A.2d at 357-60, the Chase doctrine was laid to rest. The Court carefully

examined the differences between violation hearings and criminal trials, explaining that “a

‘probation revocation hearing is not part of a criminal prosecution and therefore does not give

rise to the full panoply of rights that are due [to] a defendant at trial.’” Id. at 358-59 (quoting

Chase, 588 A.2d at 122). Critically, we found that probation-revocation hearings are less formal

than a criminal trial—hearings are held without detailed preparation and evidence rules are less

stringently applied—resulting in defendants being “afford[ed] considerably less due process

protection than that to which they are constitutionally entitled in a full-blown criminal trial.” Id.



                                               - 10 -
at 359. We noted that the continued application of collateral estoppel in this context would

“‘undesirably alter the criminal trial process by permitting informal revocation determinations to

displace the intended factfinding function of the trial’” and “forc[e] the state to expedite

discovery and present any and all of its evidence and witnesses well in advance of trial.” Id. at

360 (quoting Lucido v. Superior Court, 795 P.2d 1223, 1229 (Cal. 1990) (en banc)).

                                        Identity of Issues

       Although we acknowledge that the circumstances in the case at bar differ from the cases

discussed, we are nonetheless persuaded by their rationales. In the case before us, we are

confronted with two discrete offenses such that, as in Godette, there is not an identity of issues.

An identity of issues requires “first, [that] the issue sought to be precluded must be identical to

the issue decided in the prior proceeding; second, the issue must actually [have been] litigated;

and third, the issue must necessarily have been decided.” Godette, 751 A.2d at 746 (quoting Hie,

688 A.2d at 285). The requirements set forth in §§ 31-27-2.3 and 31-27-2.1 do not meet this

three-part analysis.

       To be sure, both statutes require that the officer have a reasonable belief or reasonable

grounds to believe that the operator was operating a motor vehicle while under the influence of

alcohol or other substances before requesting that the operator submit to a particular test.

Importantly, the issue is unrelated to whether there was a lawful stop or probable cause to arrest

the operator. Reasonable belief is merely the grounds upon which the officer based a request

that the operator submit to each test. Reasonable belief that the operator was operating under the

influence may be established up until the point when the officer requests that the operator submit

to a preliminary breath test. Accordingly, the operator’s post-arrest behavior, while irrelevant to

an infraction under § 31-27-2.3, is highly relevant to a charge under § 31-27-2.1. These factors,



                                              - 11 -
coupled with the observations made by the officer from his or her initial interaction with the

operator—which constitute relevant and admissible evidence—may satisfy the reasonable

grounds to believe the operator was driving while under the influence. A chemical refusal can be

supported by evidence that is not relevant to an operator’s refusal to submit to a preliminary test.

See State v. Jenkins, 673 A.2d 1094, 1097 (R.I. 1996) (holding that a finding that the motorist

was arrested without probable cause was unrelated and irrelevant to the issue of reasonable

grounds to believe that the operator was driving under the influence in a prosecution for refusal,

because the defendant was charged under two separate statutes with distinct elements); see also

Gautier, 871 A.2d at 358, 360 (“Thus, even assuming, arguendo, that the hearing justice made

additional findings of fact relieving the defendant of criminal responsibility [in the probation-

revocation context] * * * it would in no way preclude the state from indicting and prosecuting

[the] defendant for the alleged [crime]” “[b]ecause it is not appropriate for a hearing justice in

probation-revocation proceedings to make factual determinations of guilt or innocence[.]”). As

noted, the results of a preliminary breath test are not admissible in a trial for the more serious

criminal offenses of driving under the influence and refusing to submit to a chemical breath test.

We are hard-pressed to state that a determination on a preliminary refusal infraction could

collaterally estop the state from pursuing the more serious chemical refusal charge when results

from a preliminary breath test analysis would not even be admissible in such a subsequent

proceeding.

       We conduct a de novo review when confronted with a motion to dismiss on collateral

estoppel grounds. See Rodriguez, 917 A.2d at 413. In the case at bar, we are confronted with a

chaotic, 2 a.m. near-collision with a police cruiser, a motorist driving through two stop signs,

followed by a foot chase, a pepper spray takedown, preliminary refusal, struggle, and



                                               - 12 -
uncooperative behavior at the police department. Viewed in its entirety, this conduct provided

Officer Sarasin with the requisite reasonable grounds to request a chemical breath test. We note

that, at trial, Officer Sarasin testified that, before the stop, based on defendant’s driving—which

he described as erratic and involved two stop-sign violations at 2 a.m.—he suspected that

defendant was driving under the influence. Furthermore, after the preliminary refusal,9 Officer

Sarasin found two unopened sixteen-ounce beer bottles in defendant’s vehicle, and he testified

that defendant was belligerent and uncooperative at the police department. The defendant

ignored the officers’ commands and repeatedly rose from his chair and attempted to walk away

while being read his rights at the police department. He was physically restrained by officers

each time and eventually handcuffed to the chair. Accordingly, we are of the opinion that

identity of issues is lacking because there are two separate offenses and evidence which is

relevant to the second offense was irrelevant to the first refusal.

                                         Actually Litigated

       Furthermore, we are not convinced that the issue to which defendant now seeks

application of collateral estoppel was fully litigated in the Traffic Tribunal. The preliminary

refusal was dismissed by the magistrate for lack of “evidentiary foundation.” Although the

application of collateral estoppel in the probation violation context has been abrogated, it

nonetheless is useful to look to Chase, because we declared that “only a specific finding on a

material matter of fact fully litigated at [a] * * * hearing will collaterally estop the state from

attempting to prove the same fact at trial. A general finding will not suffice * * *.” Chase, 588

A.2d at 123 (emphasis added). Here, the magistrate did not make a specific finding. He simply

9
  Although a preliminary refusal, standing alone, may not supply the requisite reasonable belief
necessary to request that a motorist submit to a chemical breath test, the fact that the operator
refused the preliminary breath test, however, is certainly an observation which may help an
officer formulate a reasonable belief that the motorist is intoxicated, as required by § 31-27-2.1.
                                                - 13 -
noted that the foundational requirements necessary to prove a preliminary refusal had not been

met, and he did not make “a specific finding on a material matter.” Id. Before the magistrate, the

officer failed to offer any testimony about his reasonable belief that defendant was driving while

intoxicated.   In rendering his decision, the magistrate informed Officer Sarasin that the

“evidentiary foundation” that he was required to put forth is one based on contact with the

motorist—“that you smelled alcohol or saw bloodshot, watery eyes or a staggered gait or motor

skills * * *[.]” Critically, however, none of these observations is statutorily mandated, nor are

they elements of the offense, such that collateral estoppel should operate. The magistrate also

declared that Officer Sarasin should have testified that:

                “[he was] certified * * * through the academy * * * in DUI
                investigation and that based upon all of these observations, it was
                leading * * * [him] down the path to conclude that [defendant] was
                operating under the influence of alcohol and/or drugs and that in
                furtherance of this investigation, [he] asked [defendant] to submit
                to the preliminary breath test, that [he was] certified to do the * * *
                preliminary breath test and that [defendant] refused to do that.”

The magistrate further misconstrued the statute in determining that Officer Sarasin was required

to testify as to his certifications. Although this testimony is often offered in similar cases, it is in

no way required by § 31-27-2.3 to sustain a preliminary refusal infraction. The magistrate did

not make “a specific finding on a material matter of fact.” Chase, 588 A.2d at 123.

        In Rhode Island, every person who operates a motor vehicle in this state is deemed to

have given consent to chemical tests for the presence of alcohol or drugs in his or her system.

All that is necessary is that the officer reasonably believe that a motorist who has been lawfully

stopped is driving under the influence of alcohol or drugs. Certainly, the smell of alcohol,

bloodshot eyes, or a staggering gait are among the hallmarks of drunk driving. However, these

observations are not exclusive factors upon which an officer “has reason to believe that a person



                                                 - 14 -
is driving * * * or has actual physical control of any motor vehicle in this state while under the

influence of alcohol.” State v. DiStefano, 764 A.2d 1156, 1160 (R.I. 2000). The doctrine of

collateral estoppel “is capable of producing extraordinarily harsh and unfair results.” Foster-

Glocester Regional School Committee, 854 A.2d at 1017 (quoting Casco Indemnity Co. v.

O’Connor, 755 A.2d 779, 782 (R.I. 2000)), such that this Court will “not apply the doctrine

‘mechanically’ in situations in which it would lead to inequitable results.” Gautier, 871 A.2d at

358 (quoting Foster-Glocester Regional School Committee, 854 A.2d at 1017). As we did in

Godette, we continue to heed the “United States Supreme Court’s observation that ‘collateral

estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a

19th century pleading book, but with realism and rationality.’” Godette, 751 A.2d at 746

(quoting Hie, 688 A.2d at 285; Ashe v. Swenson, 397 U.S. 436, 444 (1970)). We therefore

decline to apply a doctrine that hinges on the fact that an issue was “actually litigated” when the

evidentiary threshold was not established and the magistrate made only a general finding on the

issue.

               Differences Between the Traffic Tribunal and the Superior Court

         Finally, the state argues that collateral estoppel should not apply in Superior Court to

decisions rendered in the Traffic Tribunal. In ruling on this issue, Gautier instructs us to

carefully examine the procedural and substantive differences between proceedings in the Traffic

Tribunal and criminal trials conducted in the Superior Court.         See Restatement (Second)

Judgments § 28 cmt.d. (1982) (“[T]here may be compelling reasons why [issue] preclusion

should not apply. For example, the procedures available in the first court may have been tailored

to the prompt, inexpensive determination of small claims and thus may be wholly inappropriate

to the determination of the same issues when presented in the context of a much larger claim.”).



                                              - 15 -
Rule 2 and Rule 17 of the Rules of Procedure for the Traffic Tribunal delineate that the rules

adjudicate “civil, not criminal, violations” where the state or municipality has the burden to

“prosecut[e] to a standard of clear and convincing evidence.” The discovery mechanisms are

also more limited than those in the Superior Court, and defendants are not guaranteed the right to

counsel.

       We also note that several jurisdictions have considered this issue and rejected holding

that traffic infractions may serve as a basis for collateral estoppel in a subsequent criminal

proceeding.10 The Court of Appeals of Arizona, in State v. Walker, 768 P.2d 668 (Ariz. Ct. App.

1989), noted that “[c]ollateral estoppel effect is generally denied to traffic convictions and minor

offenses under accepted common law principles * * * because of the relative insignificance of

the charges, [the] defendants have no constitutional right to a jury trial in traffic cases, as they

would in true criminal prosecution, and cannot reasonably be expected to defend with the same

vigor.” Id. at 671 (citing Gilberg v. Barbieri, 441 N.Y.S.2d 49, 51-53, 52 (N.Y. 1981)). See also

In re Dennis B., 557 P.2d 514, 520 (Cal. 1976) (noting that “highway patrol officers * * *

perform certain tasks for which deputy district or city attorneys are usually required[;] [t]his type

of flexibility benefits all parties: defendants gain a swift and inexpensive disposition of their

cases without risk of major penalties; and the prosecution, the court system, and ultimately the

public benefit because judicial and law enforcement resources are freed to concentrate on serious

criminal behavior”). Cf. Briggeman v. Albert, 586 A.2d 15, 18 (Md. 1991) (considering whether

to admit a traffic violation in subsequent criminal proceeding, noting that “it is common




10
   To be sure, we are cognizant that traffic tribunal rules and violations vary from jurisdiction to
jurisdiction. We nonetheless are of the opinion that the rationales from these cases are
instructive as to this particular question.
                                               - 16 -
experience that people plead guilty to traffic charges for reasons of expediency even though they

may believe themselves innocent”).

       This Court has held that the application of collateral estoppel in the criminal context is to

be applied with practicality and reasonableness. See Godette, 751 A.2d at 746; Hie, 688 A.2d at

284-85. We are mindful that a criminal trial is a search for the truth.     See State v. Oster, 922

A.2d 151, 163 (R.I. 2007) (“A criminal trial is a search for the truth; it is not a game of chess.”).

Nonetheless, in light of our conclusion that collateral estoppel does not apply in the

circumstances of this case, we deem it unnecessary to decide whether collateral estoppel is

applicable to issues determined in the Traffic Tribunal when all of the elements of the doctrine

are met. That is a journey we reserve for another day.

                                            Conclusion

       For the reasons articulated herein, we affirm the judgment of conviction of the Superior

Court. The papers may be remanded to the Superior Court.



       Justice Flaherty, with whom Justice Robinson joins, dissenting. We respectfully

dissent from the holding of the majority in this case. We do not quibble with the majority’s

explanation of the law on collateral estoppel, nor do we disagree with its interpretation of G.L.

1956 § 31-27-2.3(a) (the preliminary breath test statute) or § 31-27-2.1 (the chemical test

statute). Moreover, it is our opinion that the majority’s recitation of the facts is, for the most

part, accurate. We dissent, however, because we believe that the majority has misapplied the

pertinent facts to the law.

       As the majority correctly explains, the doctrine of collateral estoppel has three

fundamental elements: “(1) the parties are the same or in privity with the parties of the previous



                                               - 17 -
proceeding; (2) a final judgment on the merits has been entered in the previous proceeding; [and]

(3) the issue or issues in question are identical in both proceedings.” Kenlin Properties, LLC v.

City of East Providence, 139 A.3d 491, 497-98 (R.I. 2016) (quoting Foster-Glocester Regional

School Committee v. Board of Review, 854 A.2d 1008, 1014 (R.I. 2004)). After carefully

reviewing the record in this case, it is our opinion that defendant has met every element of the

collateral estoppel test; and, therefore, the state should have been precluded from offering

testimony that would establish reasonable suspicion of defendant’s intoxication prior to his

refusal to submit to the preliminary breath test. Consequently, his conviction for failure to

submit to a chemical test should be vacated.

                                                     I

                                           Same Parties

       The majority correctly notes that the state has conceded that the parties were identical at

the hearings in the Traffic Tribunal and the Superior Court. Therefore, this element of the

collateral estoppel doctrine has been satisfied.

                                                    II

                                          Final Judgment

       Likewise, the final judgment element was easily met when the Traffic Tribunal issued a

Traffic Summons Judgment Card for the preliminary breath test refusal count.             A fuller

discussion of final judgment follows in Section III(C).

                                                    III

                                         Identity of Issues

       The final element of collateral estoppel is identity of issues. For defendant to show that

there was an identity of issues, three sub-elements must be met: the issue that is to be precluded




                                                   - 18 -
must be identical to the issue that was decided in the prior proceeding; the issue must actually

have been litigated; and, the issue must have been decided. See State v. Godette, 751 A.2d 742,

746 (R.I. 2000).

                                                    A

                                            Identical Issue

        The majority correctly notes that the preliminary breath test statute and the chemical test

statute each requires a law enforcement officer to have “reasonable belief or reasonable grounds”

to request that a motorist submit to either a preliminary breath test or a chemical test. That is,

both statutes require an officer to meet the same level of suspicion before requesting the

administration of a test for intoxication. The majority states that, under the preliminary breath

test statute, “[r]easonable belief that the operator was operating under the influence may be

established up until the point when the officer requests that the operator submit to a preliminary

breath test.” We agree completely with this statement. The majority then adds that “the

operator’s post-arrest behavior, while irrelevant to an infraction under [the preliminary breath

test statute], is highly relevant to a charge under [the chemical test statute].” It is this statement,

particularly as applied to the facts in this case, that lies at the core of our dissent.

        It is important to note that we do not advance the argument that the state is always

estopped from pursuing a charge under the chemical test statute after a defendant has been found

to be not liable under the preliminary breath test statute. Indeed, we recognize that there are

significant differences between the two statutes that would frequently render a defense of

collateral estoppel inapplicable. However, our focus is on the identical threshold issue contained

in each statute: that a police officer must have reasonable belief that the motor vehicle operator

was impaired before administering a test for intoxication. It is with respect to this threshold




                                                  - 19 -
issue that the state failed to produce evidence in the Traffic Tribunal, resulting in a dismissal of

the charge of refusing to take a preliminary breath test.

        Upon an initial reading, the two statutes appear distinct enough such that collateral

estoppel could not apply because evidence from a later moment in time is permissible to create

reasonable suspicion under the chemical test statute. However, it is our position that, if a

defendant is found not liable on the preliminary breath test statute because the state failed to

show that an officer had a reasonable suspicion to believe that defendant was operating his

vehicle under the influence, and later, at a subsequent trial, the state produces no post-arrest

evidence that would demonstrate that a police officer had reasonable cause to believe that

defendant had been operating a motor vehicle while intoxicated, then the issue to be decided is

identical.

        Here, the magistrate at the Traffic Tribunal ruled that the state had failed to establish that

the law enforcement officer had produced evidence that he had reasonable suspicion to believe

that defendant was driving under the influence.1 This, of course, was necessary as well when

defendant was prosecuted in the Superior Court for refusal to submit to the chemical test.

Notwithstanding that shortcoming, had the state produced any credible post-arrest evidence that

defendant had been operating a motor vehicle while intoxicated, we would agree with the

majority that collateral estoppel does not apply. However, after a thorough review of the record

we are unable to divine any post-arrest evidence that would have given rise to a reasonable




1
  As the majority writes, with respect to the proceedings before the Traffic Tribunal: “[T]he
officer failed to offer any testimony about his reasonable belief that defendant was driving while
intoxicated.” It was this lack of testimony that required the magistrate to dismiss the preliminary
breath charge because, according to the magistrate, “[w]ithout the foundation evidence of that,
that charge can’t be sustained.”


                                                - 20 -
suspicion to believe that defendant was operating his motor vehicle while intoxicated. The

majority notes that, after Officers Sarasin and Perreault arrested defendant,

               “Officer Sarasin found two unopened sixteen-ounce beer bottles in
               defendant’s vehicle, and he testified that defendant was belligerent
               and uncooperative at the Police Department. The defendant
               ignored the officers’ commands and repeatedly rose from his chair
               and attempted to walk-away while being read his rights at the
               Police Department. He was physically restrained by officers each
               time and eventually handcuffed to the chair.”

        Nothing in Officer Sarasin’s testimony in the Superior Court demonstrates any indicia of

intoxication such that an officer would have reasonable suspicion to believe that defendant was

operating his vehicle while he was intoxicated. The officer’s discovery of sealed beer bottles

cannot be an indication of intoxication; indeed, it is hard to imagine a person becoming

intoxicated from an unopened bottle of beer. To find otherwise would create a situation where

any person driving with a sealed bottle that contains an alcoholic beverage has, by that fact

alone, given an officer reasonable suspicion to believe that he is intoxicated. Likewise, the fact

that defendant was belligerent at the police station and did not remain seated while being

processed does not give rise to a suspicion of intoxication, and no witness testified that it did.

This is especially so when we take into consideration that Officer Sarasin testified that defendant

was still suffering from the effects of the pepper spray with which the officers had earlier doused

him.2

        Because there was no post-arrest evidence that would give rise to the reasonable belief

that defendant was intoxicated, the reasonableness of suspicion must rest on Officer Sarasin’s

testimony about pre-arrest evidence. But, in our opinion, the failure of the state to have offered

2
  In a footnote, the majority suggests that the mere refusal of the preliminary test “may help an
officer formulate a reasonable belief that the motorist is intoxicated[.]” We vigorously disagree
with this notion because there are myriad reasons why a person may decide to refuse the
preliminary breath test.


                                               - 21 -
any such evidence at the Traffic Tribunal should, by the operation of collateral estoppel, have

been precluded in the Superior Court.

       It is our opinion that, in this case, there was an identity of issues in the case before the

Traffic Tribunal and the later proceeding in the Superior Court. At trial in the Superior Court,

the state failed to show any indicia of intoxication on the part of defendant, except for the

evidence that should have been produced at the Traffic Tribunal.            Accordingly, collateral

estoppel should have precluded the admission of such evidence in the Superior Court.

                                                 B

                                        Actually Litigated

       Our law is clear that for collateral estoppel to apply, an issue must be “actually litigated.”

Kenlin Properties, LLC, 139 A.3d at 497; see also Foster-Glocester Regional School Committee,

854 A.2d at 1014. According to Black’s Law Dictionary, for an issue to be “actually litigated,”

it must have been “properly raised in an earlier lawsuit, submitted to the court for a

determination, and determined.” Black’s Law Dictionary 43 (10th ed. 2014). To us, it is

obvious that the issue that defendant sought to exclude from trial in the Superior Court—namely,

pre-arrest evidence that would give rise to a reasonable suspicion that he was intoxicated while

operating his motor vehicle—was litigated in the Traffic Tribunal.

       During the proceeding in the Traffic Tribunal, the issue was raised when the magistrate

began the proceeding by saying: “All right, this is * * * summons 07-103-008802 * * *, refusing

to submit to a preliminary breath test, * * * this occurred * * * 12/28/2011, is that correct?”




                                               - 22 -
Officer Sarasin3 responded, “[y]es, sir.” The issue was analyzed by the magistrate upon the close

of evidence, and it was then determined when the magistrate dismissed the charge.

       The majority appears to believe that collateral estoppel should not apply because the state

failed to introduce any evidence in the Traffic Tribunal that would create an “evidentiary

foundation” to indicate that Officer Sarasin had a reasonable suspicion to believe that defendant

was intoxicated. However, we are perplexed by the majority’s reasoning because it relies on

abrogated law to support its argument. The majority opinion details how this Court abrogated

State v. Chase, 588 A.2d 120, 123 (R.I. 1991), and highlights the following language from Chase

as no longer good law:

               “[O]nly a specific finding on a material matter of fact fully
               litigated at the probation-revocation hearing will collaterally estop
               the state from attempting to prove the same fact at trial. A general
               finding will not suffice, nor will a specific finding that was not
               fully litigated unless the state had notice that the issue was to be
               litigated fully at the hearing and had a fair opportunity to do so.”
               Id.4

       After disavowing this very language, the majority goes on to quote the exact same

language to support its proposition that the issue that defendant seeks to collaterally estop was

not actually litigated in the Traffic Tribunal. In doing so, the majority removes the words “the

probation-revocation” from the quote and replaces those words with a bracketed “a,” as though

that legerdemain would somehow bring Chase back from the dead.

       The majority opines that collateral estoppel cannot apply “when the evidentiary threshold

was not established” because the magistrate did not make a “specific finding,” but rather made

only a “general finding.” To support this conclusion, the majority relies on the overruled section

3
  As the majority correctly notes, the Traffic Tribunal transcript incorrectly identifies the officer
as Officer Harris. It was, in fact, Officer Sarasin who testified at the Traffic Tribunal.
4
  This language from State v. Chase, 588 A.2d 120, 123 (R.I. 1991), was specifically overruled
by State v. Gautier, 871 A.2d 347, 358-60 (R.I. 2005).


                                               - 23 -
of Chase that requires a “specific finding” of fact. Accordingly, we believe that the majority

relies on abrogated law in coming to its conclusion that the issue was not actually litigated.

       Actually, our law allows the doctrine of collateral estoppel to apply “when an issue of

ultimate fact has once been determined by a valid and final judgment[.]” State v. Gautier, 871

A.2d 347, 358 (R.I. 2005) (quoting State v. Werner, 865 A.2d 1049, 1055 (R.I. 2005) (emphasis

omitted and added)). Although the magistrate may not have made a “specific finding,” he did

determine an issue of ultimate fact when he ruled that the state had failed to create an

“evidentiary foundation.”5

       The majority’s reliance on the magistrate’s failure to make a specific finding of fact is

additionally misguided because the state provided no evidence upon which the magistrate could

have made a specific finding. It was the state’s burden to show by clear and convincing evidence

that the officer had reasonable suspicion. For collateral estoppel to apply at a later proceeding,

all that matters is that the state had the opportunity to introduce evidence, not whether it actually

did. See Restatement (Second) Judgments § 27 cmt. c. at 253 (1982) (“[I]f the party against

whom preclusion is sought did in fact litigate an issue of ultimate fact and suffered an adverse

determination, new evidentiary facts may not be brought forward to obtain a different

determination of that ultimate fact.”);6 see also Adler v. Makowski, 486 N.W.2d 37, at *3 (Wis.



5
  Black’s Law Dictionary defines “ultimate fact” as “1. A fact essential to the claim or the
defense. * * * 2. A fact that is found by making an inference or deduction from findings of other
facts; specif., a factual conclusion derived from intermediate facts.” Black’s Law Dictionary 711
(10th ed. 2014). Here, the magistrate inferred from the lack of evidence produced that the officer
did not have reasonable suspicion.
6
  Illustration 4 to Restatement (Second) Judgments § 27 at 253 (1982) provides the following
helpful hypothetical:
                         “A brings an action against B to recover for personal
                 injuries in an automobile accident. A seeks to establish that B was
                 negligent in driving at an excessive rate of speed. After trial,
                 verdict and judgment are given for B. In a subsequent action by B


                                               - 24 -
Ct. App. 1992) (“The party seeking to avoid application of the doctrine [of collateral estoppel]

bears the burden of showing that he was deprived of a full airing of the issue the first time.”).

       Clearly, the state had the opportunity to produce in the Traffic Tribunal the evidence that

it later relied on in the Superior Court; namely, Officer Sarasin’s testimony. Thus, it should have

been estopped from producing that same evidence in the Superior Court.

                                                 C

                                     The Issue Was Decided

       It is further our opinion that the issue was decided when the Traffic Tribunal magistrate

dismissed the charge against defendant for refusing the preliminary breath test. The matter was

decided by a judicial officer who had the authority to resolve the issue fully and finally, and he

did so. After the hearing, a Traffic Summons Judgment Card entered that noted the disposition

of the charge as “Dismissed.” The magistrate’s dismissal of that charge from the bench and the

subsequent entering of the judgment are conclusive of the fact that the issue was decided.

       The majority attempts to discredit the validity of the Traffic Tribunal judgment by

likening the proceedings to probation-revocation hearings. Although what transpires in the

Traffic Tribunal is in some respects less formal than what usually occurs in the Superior Court, it

is, nonetheless, a legislatively created court of competent jurisdiction. See G.L. 1956 §§ 8-8.2-1,

8-8.2-2. The hearings are recorded and presided over by a full-time magistrate, and the decisions

are binding upon the parties.




               against A for injuries in the same accident, A is precluded from
               setting up B’s negligence as a defense, whether or not the alleged
               negligence is based on an assertion of excessive speed. It is
               reasonable to require A to bring forward all evidence in support of
               the alleged negligence in the initial proceeding.”



                                               - 25 -
       Moreover, the General Assembly saw fit to give the Traffic Tribunal jurisdiction over

charges brought under both the preliminary breath test statute and the chemical test statute.7 See

G.L. 1956 § 42-9-4(b). Thus, the Traffic Tribunal is as equally competent as the Superior Court

to adjudicate charges under the chemical test statute. It is difficult to imagine the majority not

applying collateral estoppel had the second proceeding occurred in the Traffic Tribunal. The fact

that the chemical test charge was brought in the Superior Court should not change the result.

       Because we conclude that: (1) the issue that was decided in the Superior Court was

identical to the one before a judicial officer in the Traffic Tribunal; (2) that the issue was actually

litigated in the Traffic Tribunal; and (3) that the issue was decided, we believe that there was an

identity of issues for the purpose of applying collateral estoppel.

                                                  IV

                                             Conclusion

       In our opinion, the elements of collateral estoppel were met. The question is not whether

the state fully litigated its case in the Traffic Tribunal, but whether it had the opportunity to do

so. It did, and it was not successful. As a result, the state should have been precluded from

offering evidence in the Superior Court about what occurred before the defendant’s arrest.

Without that testimony, the charge of refusal to take the chemical test pursuant to § 31-27-2.1

fails and the conviction should be vacated. Consequently, we respectfully dissent from the

majority opinion in this case.




7
  The Superior Court had jurisdiction over the offense under G.L. 1956 § 31-27-2.1, refusal to
submit to a chemical test, because it was defendant’s second offense, which has been declared to
be a misdemeanor by the General Assembly. Had it been a first offense, the matter would have
been adjudicated in the Traffic Tribunal.


                                                - 26 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Francisco Pacheco.
                                     No. 2014-229-C.A.
Case Number
                                     (P2/12-1403A)
Date Opinion Filed                   June 16, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Brian Van Couyghen
                                     For State:

                                     Aaron L. Weisman
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Megan F. Jackson
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
