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.