dissenting.
I respectfully dissent from the holding of the majority in this case. To me, the critical issue to be determined is which of these parties “opened the door” so that the state could introduce evidence in rebuttal that the defendant had been drinking and *149appeared to be intoxicated. In his pretrial order, the trial justice specifically excluded any evidence of the defendant’s apparent consumption of alcohol. The trial justice did, however, rule that “if the defendant takes the stand, depending on what he testifies to, he may very well open the door to those other matters coming in evidence on rebuttal.”
The defendant did take the stand in this case, but said nothing on his direct testimony about what he had had to chink; more importantly, he did not deny that he had been drinking. As a result, there was no evidence regarding the consumption of alcohol to rebut. The first reference to alcoholic beverages made its way into the record on cross-examination when the prosecutor asked the defendant:
“Q. What did your meal consist of?
“A. Egg roll.
“Q. Just an egg roll?
“A. Pretty much a snack.
“Q. Just a snack?
“A. Yes.
“Q. Did you wash it down with anything?
“A. There was water at the table.
Yes.
“Q. Just water?
“A. N ot just water.
“Q. What were you drinking?
“A. I had a few beers, two.”
It was this testimony that the state was able to use as a magic wand to produce rebuttal testimony from other police officers, later present at the scene, who testified as to defendant’s apparent intoxication.
In my view, this is precisely the type of trial tactic that was proscribed by this Court in State v. O’Dell, 576 A.2d 425 (R.I.1990). In O’Dell, we said that “[i]n sum the prosecution may not manufacture an issue in the course of cross-examination for the purpose of impeaching the credibility of defendant by the use of evidence or testimony that would otherwise be inadmissible.” Id. at 429.
I do not agree with the rationale of the majority that O’Dell does not apply to the matter before us simply because this case involves evidence excluded based on a motion in limine, while the precipitating event in O’Dell was a discovery violation. To me, the salient fact is that the trial justice had ruled the evidence inadmissible unless the defendant opened the door, and in my view the door was opened not by the defendant, but by the state. This very issue was again addressed by this Court in State v. McDowell, 620 A.2d 94 (R.I.1993). In McDowell, the defendant stood trial for a sexual assault on five teenage girls, all of whom had provided baby-sitting services to his family. Each of the victims testified against him. In addition, the state attempted to introduce the testimony of another alleged teenage victim, Pierce, who was not named in the indictment. On objection by defendant’s counsel, the testimony of that witness was excluded.
After the prosecution rested, defendant took the stand. When he was cross-examined, the prosecutor asked him whether he ever had sexually assaulted or directed sexually inappropriate comments toward Pierce. When the defendant denied such conduct, the trial justice allowed Pierce to take the stand and offer rebuttal testimony of sexual assaults against her that were not charged in the indictment.
Relying on O’Dell, this Court reversed, stating “[t]he defendant did not mention Pierce on direct examination. Yet the prosecution questioned defendant about her on cross-examination and then used rebuttal testimony to introduce Pierce’s otherwise inadmissible evidence. This *150amounts to reversible error.” McDowell, 620 A.2d at 96.
In my opinion, the situation in McDowell is precisely what confronts us here. Because of its extremely’ prejudicial nature, the trial justice ruled that evidence of Car-valho’s drinking would not be admissible by the state in its direct case. However, the state impermissibly revived the issue by bringing it up on cross-examination and then rebutting it.
Even though the defendant’s testimony about his three-hour stroll through the Town of West Warwick may have been implausible, effective cross-examination could have been conducted without questioning him about what alcohol he had imbibed and then bringing forward rebuttal witnesses to suggest that perhaps he had indulged in more.
Our case law has been particularly vigilant with respect to the incendiary nature of evidence involving the drinking of alcohol. In Handy v. Geary, 105 R.I. 419, 252 A.2d 435 (1969), we strictly limited the introduction of such evidence.
“Because of the potential prejudice to a litigant by the admission of this kind of evidence, and in order to give guidance to trial justices in the trial of civil actions where this question arises, we are today announcing a new procedure which we believe will better serve the ends of justice. Whenever the issue of intoxication is raised, before evidence of drinking of intoxicants may be presented to the jury, the trial justice shall conduct a preliminary evidentiary hearing on this issue in the absence of the jury. If he finds that the evidence is such that different minds can naturally and fairly come to different conclusions on the question of intoxication, as we have defined that term, then and only then, may evidence of drinking be admitted under proper instructions for ultimate determination of such question by the jury under the same test.” Id. at 431, 252 A.2d at 441-42.
This Court’s rationale in Handy was extended to criminal cases in State v. Amaral, 109 R.I. 379, 285 A.2d 783 (1972).2 In Amaral, the defendant was charged with driving while intoxicated and with reckless driving, death resulting. However, the drunk-driving charge was dismissed in the District Court, and he went to trial before a jury in the Superior Court solely on the charge of reckless driving, death resulting. At trial, the state was permitted to introduce evidence that the defendant had been drinking on the night in question.3 When he appealed his conviction, we addressed the issue of whether the state should have been “barred from introducing evidence of a defendant’s drinking in a trial for reckless driving, death resulting, where the charges of operating under the influence have been dismissed in a previous trial in the District Court involving the same accident.” Amaral, 109 R.I. at 381, 285 A.2d at 784. This Court reversed the conviction, relying on its reasoning in Handy. In so doing, we explained that:
*151“We are firmly convinced that the reasoning behind the decisions in those cases applies equally in criminal cases. Fairness demands that criminal trials be free of unduly prejudicial matter and of matter which has a direct tendency of creating confusion in the minds of the jurors by introducing another issue, namely, whether defendant was intoxicated, when intoxication is not an issue in the case.” Amaral, 109 R.I. at 386, 285 A.2d at 787.
As in Amaral, defendant in this case was not tried on a charge of drunk driving.
Here, only the complaining police officer and the defendant were present when the events leading to the charges took place. In essence, the jury had to choose between Officer Senerchia’s version of events or the defendant’s version. It was, therefore, enormously, and I believe impermissibly, prejudicial to the defendant for the jury to hear testimony from other witnesses that the defendant obviously had been drinking. That testimony undoubtedly was devastating to the defendant’s credibility and cannot be construed as harmless error.
For these reasons, I would vacate the judgment of conviction of the Superior Court.
. In Handy v. Geary, 105 R.I. 419, 252 A.2d 435 (1969), our analysis was guided by our decision in Peters v. Gagne, 98 R.I. 100, 199 A.2d 909 (1964), in which we similarly held that evidence of alcohol consumption was prejudicial, and not admissible, because whether the plaintiff was intoxicated was not at issue. See also Fisher v. Dye, 386 Pa. 141, 125 A.2d 472, 476 (1956) ("[T]he mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.”).
. The prosecutor also referred to the defendant's drinking and driving in his opening statement.