Sworn Report

The State appealed the trial judge’s decision dismissing the charge of violation of R.I.G.L. § 31-27-2.1 (Refusal to Submit to Chemical Test).  At trial, the Trooper testified that he created two sworn reports in connection with Defendant’s arrest for failure to submit.  The notary discovered an error in the first report and directed the Trooper to discard the report and complete a second. The Trooper testified he swore to the contents of both reports in front of the notary.  However, on cross-examination the notary testified that he could not recall whether the Trooper swore to the second report, despite the notary having signed it.  Defendant’s counsel moved to dismiss the case at the close of the trial on the grounds that the State failed to establish by clear and convincing evidence that the Trooper created a sworn report.  The State appealed, arguing the trial judge’s decision was clearly erroneous and was an error of law.  The Appeals Panel deferred to the wide latitude the trial judge enjoys in weighing evidence and the credibility of witnesses.  Here, the trial judge had not been satisfied by clear and convincing evidence that the Trooper swore to the report, a finding of fact that the Panel will not second guess.  Therefore, the decision was not clearly erroneous.  Also, because a sworn report is necessary to sustain a charge of refusal to submit, there was no error of law.  Accordingly, the Panel affirmed the dismissal and denied the State’s appeal.

State of Rhode Island vs. John O’Hara, C.A. No. T13-0079 (June 23, 2014).pdf