concurring.
Although we agree with the result and with most of the reasoning expressed in Justice Goldberg’s opinion for the court in this *863case, we respectfully disagree in regard to the collateral estoppel issue. On that one point we agree with Chief Justice Weisber-ger’s dissent except for one important consideration: the prosecution’s burden of proof in a District Court criminal prosecution for establishing compliance with G.L. 1956 § 31-27-3.
Section 31-27-3 expressly provides that “at the trial of the person [charged with operating a motor vehicle while under the influence of narcotic drugs or intoxicating liquor] the prosecution must prove that he or she was so informed [that is, told ‘immediately after the person’s arrest’ of the person’s right to be examined by a physician of his or her own choosing] and was afforded that opportunity.” Given this unusual statutory language, we conclude that the General Assembly intended for the prosecution to prove compliance with this statute as an element of its driving-under-the-influence case and that, therefore, it has to establish compliance therewith by proof beyond a reasonable doubt.
Accordingly, when the District Court found that “the state failed to establish its compliance with section 31-27-3 of the Rhode Island General Laws for the purposes of this trial,” it was applying a standard of proof (beyond a reasonable doubt) that is higher than the civil standard (clear and convincing evidence) used in administrative violation hearings in cases of alleged breathalyzer refusals. See G.L.1956 § 31-43-3 (“no charge may be established except by clear and convincing evidence”).
Because of the higher standard of proof used in criminal prosecutions for driving-under-the-influence charges, a District Court finding that compliance with § 31-27-3 has not been established cannot be used to preclude the state from later proceeding administratively against the same defendant on breathalyzer-refusal charges before the Administrative Adjudication Court. See Restatement (Second) of Judgments § 28(4), at 273 (1982) (relitigation of an issue is not barred in a subsequent action between the same parties if “[t]he party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action”).
We also do not believe that State v. Langella, 650 A.2d 478 (R.I.1994), should be construed to hold that compliance with the requirements of § 31-27-3 is always a question to be decided by the trial justice rather than by the jury. The court’s brief per curiam opinion in Langella does not indicate whether the state’s compliance with § 31-27-3 was a genuine issue of material fact in that case. However, when the evidence shows that a genuine factual conflict exists about whether the state has complied with the provisions of § 31-27-3, the issue should be submitted to the jury. See State v. Poole, 97 R.I. 215, 219, 197 A.2d 163, 165 (1964).
For these reasons, we concur with Justice Goldberg’s opinion in this ease.