Telephone Call

Defendant appealed the decision of the trial judge sustaining the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test).  Defendant argued that the trial magistrate’s decision constituted reversible error of law because the State did not prove by clear and convincing evidence that the police department offered the Defendant an opportunity to make a confidential phone call.  The Panel noted that the Defendant had been read his rights for use at the scene and at the station.  The Panel noted that after being read his rights (which included informing the Defendant he had a right to a phone call), the Defendant declined to make a phone call.  Additionally, the Panel noted that the Police then offered the Defendant another opportunity to make a phone call, which the Defendant refused.  The Panel explained that the statute does not require the police to use the word “confidential” when informing a suspect about his or her right to make a phone call.  Rather, the Police are simply required to provide a degree of confidence to the suspect when a phone call is made.  The Panel held that the Police did in fact offer the Defendant an opportunity to make a phone call.  However, the Panel dismissed the charge due to the lack of a sworn report.

Town of Smithfield v. Badoui Sleiman, C.A. No. T12-0022 (August 1, 2013).pdf

Telephone Call

Defendant appealed the decision of the trial judge sustaining the violations of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test) and R.I.G.L.  1956 § 31-15-11 (laned roadway).  Defendant claimed that she was denied her right to a confidential phone call because the officer entered the room while she was speaking with her attorney.  The Court held that the defendant’s right to a confidential phone call was not violated because the officer left the defendant in the room for fifteen minutes while she spoke with her attorney and he only entered the room because the defendant summoned him in to ask him a question.  Accordingly, the Court held that the defendant had voluntarily waived her right and sustained the violation of § 31-27-2.1. 

Town of Middletown v. Svetlana Semenova, Ca.A. No. T11-0049 (March 26, 2012).pdf

Telephone Call

Defendant appealed the decision of the trial judge sustaining the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test).  The Appeals Panel held that the officer’s presence during a confidential phone call did not prejudice the defendant and did not warrant dismissal because the defendant was speaking in another language, and the officer could not understand what the defendant was saying.  Accordingly, the defendant was afforded a confidential phone call and, thus, the violation was sustained. 

City of Woonsocket v. Lamphone Voravongsa, C.A. No. T11-0065 (December 28, 2011).pdf

Telephone Call

The state appealed the decision of the trial judge dismissing the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test) in favor of the defendant. The Court held that the trial judge erred when he dismissed the violation because the defendant suffered no prejudice by the officer’s presence when he attempted to contact his lawyer. Since the defendant was not able to reach his attorney and the defendant only offered a myriad of hypothetical situations relying on “vague, speculative, or conclusory allegations[,]” he failed “[t]o establish actual prejudice[.]” The state’s appeal was granted and the matter was remanded for further proceedings. See Commonwealth v. Scher, 803 A.2d 1204, 1238 (P.A. 2002) (citing, United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir. 1996)).

Town of Smithfield v. Stephen Beauregard, C.A. No. T11-0014 (April 27, 2011).pdf

Telephone Call

The state appealed the decision of the trial judge dismissing the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test). The Appeals Panel held that R.I.G.L. 1956 § 12-7-20 (right to use telephone) was ambiguous on its face and that when an arrestee is not given a phone call within the statutorily proscribed time period of one hour, dismissal of the charges should not be mandatory. Here, the delay was caused by two other motorists colliding with the arresting officer’s vehicle. Thus, it was physically impossible to afford the defendant an opportunity to make a call within a one hour period. Further, the arresting officer acted reasonably, given the exigent circumstances, by affording the defendant an opportunity to make a call as early as physically possible. Accordingly, the Court reversed the decision of the trial judge and sustained the violation against the defendant.

Town of North Kingstown v. Brendon Beiber, C.A. No. T08-0098 (June 4, 2010).pdf

Telephone Call

Defendant appealed the decision of the trial judge sustaining the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to chemical test). The Court held that the defendant was given the opportunity to make a confidential phone call despite the presence of emergency personnel in the room. Since there was reliable, probative, and substantial evidence on the record evidencing that the defendant exercised his right to a confidential phone call and the integrity of the defendant’s communications were not violated, the violation was sustained.

City of Newport v. Regent Nicholas, C.A. No. T09-0120 (April 21, 2010).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 Appeals Panel held that the recitation of the Rights for Use at Scene and Rights for Use at Station cards was sufficient to inform the defendant that he could have an opportunity to make a phone call in accordance with R.I.G.L. 1956 § 12-7-20. Accordingly, the Court affirmed the decision of the trial magistrate sustaining the violation against the defendant.

State of Rhode Island v. Abel Pedroso C.A. No T09-0025.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 Appeals Panel held that §12-7-20 affords a defendant an opportunity to make a phone call, but not the right to the presence of counsel when making the decision of whether or not to submit to a chemical test. The Court held that although no counsel was present, the defendant was afforded the opportunity to make a call to an attorney and chose not to. Accordingly, the Court affirmed the trial magistrate’s decision.

City of Warwick v. Marcus Thomas, C.A. No. T08-0152 (April 29, 2009).pdf

Telephone Call

Defendant appealed the decision of the trial court sustaining the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test). The Court held that although the arresting officer could hear the defendant’s voice during her confidential phone call, it was made in a room with no audio-visual surveillance and the officer could not recollect what was said. Accordingly, the Court affirmed the decision of the trial magistrate sustaining the charge against the defendant.Town of Portsmouth v. Deborah Casey, C.A. No T08-0130 (March 10, 2009).pdf

Telephone Call

Defendant appealed the decision of the trial judge sustaining the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test). The Court held that § 12-7-20 (right to use telephone for call to attorney) also applies to civil cases, and the term “confidentiality” in that statute is clear and unambiguous and, thus, should be given its plain and ordinary meaning. The Court held that the defendant’s phone calls were confidential because the officer was out of earshot range and could not hear what the defendant was saying. Furthermore, the defendant was given twenty minutes to attempt to contact an attorney. Though he was unsuccessful, he also spent much of that time contacting friends, and was not prejudiced by his inability to reach an attorney. Thus, the Court affirmed the trial court’s decision sustaining the charge against the defendant.Town of West Warwick v. Dennis DeCorpo, C.A. No. T09-0074 (September 16, 2009).pdf

Telephone Call

Defendant appealed the decision of the trial court sustaining the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test). The Court held that under R.I.G.L. 1956 § 12-7-20 defendants must be given the opportunity to make a phone call, however, it is not a requirement that a defendant actually speak with an attorney before deciding whether or not to submit to a chemical test. Here, the defendant was afforded the opportunity to make a phone call.  Accordingly, the Court affirmed the decision of the trial judge sustaining the violation.

City of Warwick v. Robert Malo, C.A. No. T09-0021 (July 4, 2009).pdf

Telephone Call

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 a chemical test). The Defendant argued that she was not given a reasonable opportunity to make a confidential phone call within one hour of her arrest by the Officer, in compliance with R.I.G.L. 1956 § 12-7-20, because the Officer testified that he was able to hear the phone call through the door. Here, the Officer testified that the Defendant refused to make the phone call in the interview room and instead preferred to make the call from in the booking room. The Officer further testified that the booking room was not under audible surveillance and he was not physically present in the room at the time of the call. Since the Officer made clear he had no recollection of the Defendant’s conversation and did not include any details of the conversation in the report, the Panel found that the integrity of the confidential conversation was not compromised. Accordingly, the Panel sustained the charged violation.

Town of Portsmouth v. Deborah Casey, C.A. No. T08-0130 (December 10, 2008).pdf

Telephone Call

The state appealed the decision of the trial magistrate dismissing the violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to a chemical test). The majority 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 the defendant with a confidential phone call was dismissal of the charge. Here, the arresting officer was in earshot of a defendant’s phone conversation in a room with constant audio and video surveillance. Thus, the call was not confidential. The defendant’s verbal waiver of his right to confidentiality was inconsequential because it was the duty of the officer to provide confidentiality. Since a confidential call was not provided to the defendant, the Court affirmed the decision of the trial court dismissing the charge against the defendant.
Goulart M., dissenting: The magistrate believes that the Court should follow State v. Carcieri, 730 A.2d 11 (R.I. 1999), which states that the 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. Lewis Quatrucci, C.A. No. T08-0057 (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

Telephone Call

The State appealed the trial magistrate’s decision to dismiss the charged violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to chemical test). The State argued that the trial judge erred in finding that the presence of the Officer and Sergeant in the room had a “chilling” effect on the Defendant’s right to a confidential phone call. The Panel held that the right to a confidential phone call attaches in civil chemical test refusal cases and that the arrested person must be given the opportunity to make a call out of police earshot within one hour of arrest. Here, the Officer testified that he asked the Defendant whether he wanted to make a confidential phone call and the Defendant responded that he “didn’t care.” The Panel held that while the Defendant had the right to waive his or her right to make a phone call, once the Defendant decided to make a phone call, the Officer had an affirmative obligation to ensure that the call was confidential. Accordingly, because the Officer did not afford the Defendant with an opportunity to make a confidential phone call, the Panel upheld the trial magistrate’s decision to dismiss the charged violation.

Magistrate Goulart filed a dissenting opinion, noting 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. Lewis Quattrucci, C.A. T08-0057 (September 17, 2008).pdf

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

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 she was deprived of her right to a confidential phone call because there was a female matron in the cellblock where she made the call. In order to demonstrate that a confidential phone call violation occurred, demonstrable prejudice must be shown. State v. Calcieri, 730 A.2d 11, 13 (R.I. 1999). In Calcieri, the court observed that the presence of a police officer during a call made to an attorney or to a friend with the intent for the friend to contact an attorney may amount to demonstrable prejudice. The Panel held that the Defendant failed to show there was demonstrable prejudice where the Defendant tried to call her brother and did not indicate that she intended her brother to contact an attorney. Accordingly, the Panel upheld the trial magistrate’s decision to sustain the charged violation.

State of Rhode Island v. Erin Lawrence, C.A. T08-0049 (April 23, 2008).pdf