PROVIDENCE — A state prosecutor and a former House speaker last week debated whether new, harsher penalties apply to those who refuse to take Breathalyzer tests — or whether the penalties enacted in 2006 were wiped out when the governor signed a budget bill containing the law’s old language.

The arguments, which took place before the Rhode Island Supreme Court, prompted one justice to say, “The public should not know how sausages or laws are made.”

Before the penalties changed, nearly 85 percent of motorists suspected of drunken driving in Rhode Island were refusing to submit to a Breathalyzer test, while the national average was 25 percent.

But in 2006, the General Assembly passed a law aimed at cracking down on those that refuse to take the tests. For first offenses, the law doubled the minimum license suspension to six months, and it made subsequent offenses criminal rather than civil. For second offenses, the law provided penalties of up to six months in prison, fines of up to $1,000 and up to 100 hours of community service.

Governor Carcieri signed the bill on June 28, 2006. And two days later, the governor signed the annual budget bill, which added a $200 assessment for refusing a Breathalyzer test but did not include the stiffer penalties contained in the other legislation.

Three men charged with Breathalyzer refusal — Theodore H. Such Jr., Eric Ahlborg and Robert MacDonald — asked then-Superior Court Judge Stephen J. Fortunato Jr. to declare “which of these amendments would control in penal actions brought by prosecutors against them.” And in January 2007, Fortunato, who has since retired, ruled that the budget bill was “the controlling statute.”

The Supreme Court put that ruling on hold, pending the appeal that was argued on Wednesday.

John B. Harwood, a Pawtucket lawyer and former House speaker, argued on behalf of Such, and Tiverton lawyer Richard S. Humphrey argued on behalf of Ahlborg. They said the budget bill was signed into law after the Breathalyzer refusal bill and therefore amended the penalties back to their prior level — except for adding the $200 assessment.

“A law doesn’t become a law until it reaches the governor’s desk,” Harwood told the high court.

Supreme Court Justice Francis X. Flaherty asked, “Aren’t you ceding legislative control to the governor?” Harwood said, “Absolutely not.”

Harwood said legislators could have “taken 10 minutes,” said “we made a mistake” and amended the budget bill to include the harsher penalties. But they didn’t, so the old penalties apply, he said.

Prosecutors disagreed. Special Assistant Attorney General Michael W. Field told the Supreme Court that “in a perfect world” the budget bill might have been amended to reflect the new penalties. “But in the world of the General Assembly or any legislature… ,” he said, without finishing the thought.

Flaherty then paraphrased Otto von Bismarck, saying, “The public should not know how sausage or laws are made.”

Field emphasized that under House rules, words are underlined or placed in italics to show how a bill amends a law, and words are crossed out to show what is being deleted from a law. The remainder of the law is reproduced merely to show the context for the changes.

In the budget bill, the only underlined words regarding Breathalyzer refusals had to do with the new $200 assessment, Field said. The language about other penalties was not underlined or crossed out, “so it indicates no intent to amend or repeal it,” he said.

Supreme Court Justice Paul A. Suttell, a former state representative, said members of the House are free to ignore their own rules.

“We suggest they have done that now and again,” Supreme Court Justice Maureen McKenna Goldberg added wryly.

Flaherty said, “We used to have a [House] Speaker who would turn the clock back so it would never hit the 61st day.”

“Present company excluded,” Goldberg added, indicating Flaherty was referring to another former House speaker and not Harwood.

Harwood looked up, saying, “I may have done that.”

Field said legislators passed the Breathalyzer-refusal bill after they had approved the budget bill, so the budget contained the Breathalyzer-refusal language as it stood at the time.

When Field began addressing when the governor signed the bills, Supreme Court Chief Justice Frank J. Williams interjected, saying the governor has a lot of public bill-signing ceremonies that “don’t mean a tinker’s damn” from the perspective of the legal questions the court is facing in this case.

After the hearing, Attorney General Patrick C. Lynch issued a written statement, saying, “For too long, Rhode Island has had the disgraceful but unfortunately well-deserved reputation as a leader in the percentage of DUI-refusal cases and total deaths caused by drunk drivers. The bill that the governor and I introduced before the 2006 session of the legislature, and that became law in June of 2006, however, is working, and the public should realize that we are holding drunk drivers more accountable.”

The percentage of motorists refusing Breathalyzer tests has dropped from about 85 percent to about 50 percent, Lynch said. “The reason is, if they refuse a Breathalyzer and are convicted, they’ll lose their license for twice as long — for at least six months and potentially for as long as a year,” he said.

As for the legal challenge, Lynch said, “The plaintiffs’ conclusion, which is that the budget bill repealed the new DUI-refusal statute by implication, is absurd, relies on fuzzy logic and ought to be rejected.”

In a legal brief, Harwood, Humphrey and Providence lawyer B. Jean Rosiello urged the Supreme Court to uphold Fortunato’s decision, saying, “The state asserts in its ‘Statement of Facts’ that these two amendments ‘do not conflict.’ This is wishful thinking, not fact.”

“In the state’s view, any changed words that are not underscored or struck-through are unenacted, notwithstanding the fact that they were adopted by a majority vote of the General Assembly and the signature of the governor,” defense lawyers wrote. “That way lies confusion and trouble, both present and future.”

The words of the budget bill are “plain and unambiguous,” defense lawyers wrote, saying, “This court presumes that the constitutional actors, both General Assembly and governor, are knowledgeable and competent.”

Defense lawyers also cited the rule of lenity, which holds that courts should resolve ambiguity in favor of the more lenient punishment. “Every accused (person) is entitled to the benefit of any reasonable doubt about the ambit of the criminal law,” they wrote.

In the prosecution’s legal brief, Assistant Attorney General Neil F.X. Kelly said the budget bill and the refusal bill addressed completely different issues within the same statute, and there is no conflict between them. While Fortunato found the new penalties had been repealed by mistake, Kelly said, “There was no mistake. Armed with erroneous findings, the court elevated the context and form of the budget bill beyond what the legislature intended.”

“The ramifications of this decision are significant, calling into question the charges pursuant to the refusal statute since its amendment in 2006,” Kelly wrote.

Under Fortunato’s view, if legislators are considering more than one amendment to a statute, they would have to wait for the first amendment to pass the House and Senate and then wait to see if the governor would veto the bill before taking up the next amendment, he said.

Kelly concluded that Fortunato’s decision “is contrary to the law, the established legislative process that has existed for decades, the facts of this case and would lead to an absurd result.”

efitzpat@projo.com