Defendant appealed the decision of the trial magistrate sustaining the violation of R.I.G.L. 1956 §31-27-2.1 (refusal to submit to a chemical test). The Court held that the term “confidentiality” in § 12-7-20 is clear and unambiguous on its face and does not require legislative interpretation. Further, the court held that § 12-7-20 is also applicable in civil cases. However, since this case is civil in nature, the appropriate remedy for not affording a defendant with a confidential phone call is dismissal of the charge. The court held that a defendant may waive his or her right to a confidential phone call, but, if it is not waived, once a phone call is made, the full protections of § 12-7-20 become effective. Here, the trial court determined that the defendant did in fact waive his right to a confidential phone call. Since that was a question of fact, it was not for the Appeals Panel to review. Thus, the Court affirmed the trial court’s decision sustaining the charge against the defendant.
Goulart M., concurring in part, dissenting in part: The magistrate believes that the court should follow State v. Carcieri, 730 A.2d 11 (R.I. 1999), which states that mere presence of an officer during a phone call does not violate §12-7-20. Unless there is substantial prejudice, dismissal of the charge is an excessive remedy. However, where a defendant can establish that the phone call was to an attorney, there should be a presumption of prejudice and the burden should shift to the prosecution to prove by clear and convincing evidence that the defendant was not prejudiced.