dissenting.
I am in general agreement with the analysis set forth in the majority opinion, but I must respectfully dissent on the issue of the applicability of collateral estoppel.
The doctrine of collateral estoppel was first imposed upon the states as a constitutional mandate in the case of Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469, 476 (1970). In that case the Court held that the acquittal of the defendant of the crime of robbery in respect to one of a multiple number of victims precluded retrying the defendant for robbery of another victim. Id. In so doing, the Court overruled the earlier ease Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958). Hoag was overruled because of the intervening case of Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969), which for the first time had made the Fifth Amendment ban on double jeopardy applicable to the states.
In commenting upon the doctrine of collateral estoppel, the Court used the following language:
“ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been deter*864mined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court’s decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85 [37 S.Ct. 68, 61 L.Ed. 161 (1916)]. As Mr. Justice Holmes put the matter in that case, ‘It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.’ 242 U.S. at 87 [37 S.Ct. 68], As a rule of federal law, therefore, ‘[i]t is much too late to suggest that this principle is not fully-applicable to a former judgment in a criminal ease, either because of lack of ‘mutuality’ or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government’s evidence as a whole although not necessarily as to every link in the chain.’ United States v. Kramer, 289 F.2d 909, 913.” Ashe, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475.
It is thus apparent that the doctrine of 'collateral estoppel is a subdoetrine of double jeopardy but would apply in both civil and criminal cases. When a court of competent jurisdiction has decided an issue of ultimate fact, that fact may not be relitigated between the same parties. In the case at bar the proceedings in the Administrative Adjudication Court are civil rather than criminal. Nevertheless collateral estoppel would prevent the retrying of a factual issue as long as the burden of proof between the parties was the same.
We have never determined the burden of proof to be applied in respect to the state’s satisfying the requirement of G.L. 1956 § 31-27-3, which the majority has described as a condition precedent to presenting substantive evidence of intoxication, or refusal of a breathalyzer test.
Nevertheless, we have recently decided in State v. Langella, 650 A.2d 478, 479 (R.I.1994), that the question of determining whether the requirements of § 31-27-3 have been met (whether appropriate admonitions were given concerning the right to be examined át his or her own expense by a physician selected by him or her and the affording of a reasonable opportunity to exercise the right) was properly decided by the trial justice. We further determined that when the trial justice had decided this issue, there was no requirement that the issue should then be submitted to the jury. 650 A.2d at 479.
Consequently the determination of compliance with this condition precedent bears a strong analogy to the determination of the voluntariness of a confession prior to allowing such confession to be admitted into evidence. We have held in State v. Killay, 430 A.2d 418 (R.I.1981), that the burden of proof in respect to this determination of voluntariness is by clear and convincing evidence, id. at 421, even though we noted that the burden of proof in the federal courts is by a fair preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 627, 30 L.Ed.2d 618, 627 (1972).
Therefore, I am of the opinion that the burden of proof that the requirements of § 31-27-3 have been met should be by clear and convincing evidence. This happens to be the same burden that is applicable to all issues in the civil proceedings for breathalyzer refusal and other violations at the Administrative Adjudication Court. See G.L. 1956 § 31-43-3.
Prior to the trial of the case at bar a District Court judge had before him a charge that the motorist in this case had driven under the influence of alcohol in violation of § 31-27-2. In precisely the same factual circumstances the judge specifically found as a fact that the requirements of § 31-27-3 had not been met. On that ground alone he granted a judgment of acquittal on behalf of defendant, Luis Pineda.
The majority suggests that this determination is of no force or effect since (1) there is no transcript of the proceedings in the District Court and (2) the judge made his deter-*865ruination pursuant to a motion for judgment of acquittal that we have held to be a legal nullity in jury-waived cases. See State v. McKone, 673 A.2d 1068, 1072 (R.I.1996). Although I agree with the majority that a judge should not entertain a motion for judgment of acquittal in a jury-waived case pursuant to our holding in McKone, the acquittal of a defendant by a court of competent jurisdiction, even if the procedure were erroneous, is still binding for double-jeopardy and collateral-estoppel purposes. See Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 2181, 57 L.Ed.2d 43, 57 (1978) (holding that no matter how egregious the error an acquittal bars retrial for the same offense).
There is no question that the District Court had subject-matter jurisdiction over the charge of driving while under the influence; it is also beyond question that in such a case compliance with the requirements of § 31-27-3 was a condition precedent to the introduction of substantive evidence of intoxication. The District Court judge’s finding is certainly not vitiated or invalidated by the lack of a transcript of the trial proceedings. In the ordinary course stenographers are not utilized in the District Court, and therefore, such a record will seldom be available.
Nevertheless, the judgment is valid and binding. In this ease the trial judge memorialized his decision by a specific written finding that he had acquitted defendant because of the violation of § 31-27-3. This finding clearly set forth the judge’s factual determination even though he reached it by a route other than that approved in McKone; I believe it is completely valid and effective for purposes of collateral estoppel.
Since a court of competent jurisdiction had determined this factual issue, I believe that the Administrative Adjudication Court was not free to redetermine the same factual issue between the same parties.
For that reason I would reverse the decision of the Appeals Panel of the Administrative Adjudication Court and remand the ease to that court with directions to enter a judgment of dismissal of the charge of breathalyzer refusal.