Telephone Call

The Defendant appealed the trial magistrate’s decision to sustain the charged violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to chemical test). The Defendant argued that the civil refusal statute must be read in conjunction with R.I.G.L. 1956 § 12-7-20, a statute that safeguards the right of those arrested for a criminal offense to make a confidential phone call. The Panel held that the right to a confidential phone call does attach in civil chemical test refusal cases and that the arrested person must be given the opportunity to make the call out of police earshot within one hour of arrest or the refusal charge must be dismissed. Here, the trial magistrate found that the Defendant expressly waived his right to a confidential phone call when he responded “no, I’m all set” to the Officer’s inquiry and also implicitly waived his right by making a non-confidential phone call in the Officer’s presence on his personal cell-phone. The Panel held that while an arrestee can waive his or her right to a confidential-phone call in the first instance, once the arrestee decides to make a phone call the police have an affirmative obligation to leave the room. The Panel noted that here the Officer was not informed of the Defendant’s intention to make a confidential phone call. Accordingly, the Panel upheld the trial magistrate’s decision to sustain the charged violation.

Magistrate Goulart filed an opinion concurring in part and dissenting in part.  He concurred in the result but noted his view that dismissal would be warranted only upon proof that a telephone call was placed to an attorney and that an attorney-client communication occurred.

Town of Warren v. Michael Dolan, C.A. No. T08-0075 (September 17, 2008).pdf

Telephone Call

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.Town of Warren v. Michael Dolan, C.A. No. T08-0075 (September 17, 2008).pdf