Refusal Cases Sworn Report Required, 0614 RIBJ, 62 RI Bar J., No. 6, Pg. 29

• Author: Thomas M. Bergeron, Esq., Law Offices of Richard S. Humphrey, Tiverton

Refusal Cases: Sworn Report Required

Vol. 62 No. 6 Pg. 29

Rhode Island Bar Journal

June, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0May, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Thomas M. Bergeron, Esq., Law Offices of Richard S. Humphrey, Tiverton

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In the Town of Smithfield v. Sleiman, ¹ the Rhode Island Traffic Tribunal Appeals Panel clarified the role of a police officer's sworn report in cases where a suspected drunk driver refused to submit to a chemical test in violation of R.I. Gen. Laws § 31-27-2.1. To review, the refusal statute requires proof- by clear and convincing evidence - of the following:

1) A sworn report stating that a law enforcement officer possessed reasonable grounds to suspect an arrestee of driving under the influence;

2) The refusal of the arrestee to submit to a chemical test upon a law enforcement officer's request;

3) The reading of rights to the arrestee in accordance with § 31-27-3; and,

4) The notification of the arrestee regarding penalties that will be incurred as [a] result of noncompliance.²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The decision in Sleiman brings a newfound importance to the refusal statute's first requirement: the sworn report. Prior to Sleiman, the most definitive case law regarding the sworn report in refusal cases was Link v. State.³

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Link, the police officer's sworn report presented to the trial court contained a factual error as to the amount of an applicable fee for the underlying violation. The report incorrectly listed the $147 fee for refusing the breathalyzer test as $ 115. The trial judge, without a hearing, dismissed the refusal charge against the defendant on the grounds that prior District Court case law required dismissal where a sworn report failed to precisely disclose the penalties for refusal to submit to a chemical test.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On appeal, the Supreme Court reversed the trial judge, and held that the trial judge erred when she dismissed the charge of refusal without holding a hearing because a defective sworn report containing factual inaccuracies can be cured by live testimony at trial which, in Link, had never occurred.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Sleiman, the Appeals Panel addressed more existential questions in relation to the sworn report requirement: What if the police officer's report was improperly sworn to, or not sworn to at all...