John Bernardo | Wakefield Criminal Defense Lawyer

https://www.courts.ri.gov/Courts/districtcourt/Appeals/decisions/12-47Amended.pdf

This is an appeal to the District Court where the court further defined the meaning of 'reasonable grounds to stop'. This defendant was actually walking on the side of road and not driving at the time the officer made his decision to stop defendant. Montalbano, M. In this case Mr. Dennis Lonardo urges that an appeals panel of the Rhode Island Traffic Tribunal [hereinafter “RITT”] erred when it affirmed a trial magistrate’s decision finding him guilty of refusal to submit to a preliminary breath test, a civil violation, in violation of Gen. Laws 1956 § 31-27-2.3. This matter has been referred to me for the making of findings and recommendations pursuant to Gen. Laws 1956 § 8-8-16.2. Jurisdiction for the instant appeal is vested in the District Court by Gen. Laws 1956 § 31-41.1-9; the applicable standard of review is found in Gen. Laws 1956 § 31-41.1-9(d). After a review of the entire record I find – for the reasons explained below – that the decision of the panel is supported by reliable, probative, and substantial evidence of record and is not clearly erroneous and should be affirmed; I so recommend. VI. CONCLUSION Upon careful review of the evidence, I recommend that this Court find that the decision of the appellate panel was made upon lawful procedure and was not affected by error of law. Gen. Laws 1956 § 31-41.1-9. Furthermore, said decision is not clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. Gen. Laws 1956 § 31-41.1-9. Accordingly, I recommend that the decision of the RITT appeals panel be AFFIRMED. ____/s/_____________ Joseph A. Montalbano MAGISTRATE September 5, 2012

https://www.courts.ri.gov/courts/rhodeislandtraffictribunal/decisions/t13-0012.pdf

On November 21, 2012, Appellant was charged with the aforementioned violation of the motor vehicle code by Officer Kevin O’Connor (Officer O’Connor) of the Narragansett Police Department. Appellant was charged after Officer O’Connor observed Appellant fail two field sobriety tests and detected that Appellant was intoxicated. Appellant contested the charge, and the matter proceeded to trial. On November 21, 2012, at approximately 1:35 a.m., Appellant was parked at a stop sign on the off-ramp of Salt Pond Plaza in Narragansett. (Tr. at 7.) A car owned by witness Stacy Barrette was parked behind Appellant at the stop sign. (Tr. at 5, 6.) A third vehicle struck Barrette’s vehicle from behind, causing Barrette’s vehicle to propel forward into Appellant’s rear bumper. (Tr. at 7.) Police were called to the scene, and Officer O’Connor responded. 2 Stacy Barrette was the Town’s first witness to testify at trial.1 Barrette testified that she and her friends had been at a bar, Ocean Mist, (a restaurant and bar) for approximately four hours prior to the accident. (Tr. at 6.) Barrette’s friend was operating the vehicle while Barrette was a passenger in the back seat of the vehicle. 2 (Tr. at 11.) Barrette’s vehicle pulled up to a stop sign behind a black Toyota that was being driven by Appellant. (Tr. at 7.) Barrette’s vehicle, parked behind Appellant’s vehicle, was hit in the rear by a third car and was pushed into Appellant’s vehicle. Id. Barrette testified that her head propelled forward and smashed into the seat. (Tr. at 16.) All passengers and drivers exited their vehicles, and Appellant then informed them that she had called the police. (Tr. at 9.) Once out of the vehicle, Barrette observed that a black BMW caused the accident. (Tr. at 17.) Barrette also observed Appellant exit her vehicle, and also noticed a passenger in Appellant’s vehicle. Id. The police arrived at the scene of the accident, and Barrette was transported to the hospital to be examined. (Tr. at 19.) At the hospital, Barrette made a written statement regarding the accident. Id. Next, Officer O’Connor was called to the stand.3 (Tr. at 22.) Officer O’Connor began his testimony by describing his experience and training in regards to DUI-related traffic stops and the administration of standardized field sobriety tests. (Tr. at 24-29.) Then, focusing on the events of November 21, 2012, Officer O’Connor testified that he made contact with all parties involved in the accident and identified the operators of the vehicles. (Tr. at 31.) Officer O’Connor then identified the Appellant. The Appellant provided the Officer with her driver’s 1 Stacy Barrette identified Appellant in the courtroom as the other driver included in the three car accident. 2 Barrette owned the vehicle involved in the accident; however, since she had consumed two alcoholic beverages, she let her friend, who had not consumed any alcohol, drive the vehicle. 3 Officer O’Connor also identified Appellant in the courtroom. 3 license. (Tr. at 32.) The Officer asked Appellant and her passenger where they were coming from, and her passenger stated they were coming from Ocean Mist. Id. Officer O’Connor observed that Appellant was having trouble finding her registration and proof of insurance. (Tr. at 32-33.) The Officer also observed that Appellant’s eyes were bloodshot and that she was crying at the time. Id. Officer O’Connor asked both the Appellant and her passenger if they were injured; both responded that they were not. (Tr. at 33.) While speaking to the Appellant, Officer O’Connor noticed the “odor of an alcoholic beverage emanating from her mouth.” Id. At this point Officer O’Connor was approximately three feet from her. Id. Officer O’Connor asked Appellant if she had been drinking, to which Appellant responded that she only had one drink. (Tr. at 34.) Appellant then agreed to submit to a standardized field sobriety test after being asked by the officer. Id. Officer O’Connor escorted the Appellant to a flat, brightly lit area to conduct the test. (Tr. at 35.) Officer O’Connor explained that the test would involve walking and turning. The Officer asked if there was anything wrong with the Appellant that would prevent her from being able to walk down a line, turn, and return; Appellant responded that there was not. (Tr. at 36.) Appellant began the test after being advised on how to proceed by Officer O’Connor. Id. Appellant failed both the walking and balancing tests. (Tr. at 39- 40.) Based on Officer O’Connor’s training and experience, he formed the opinion that Appellant was operating her vehicle under the influence of alcohol. (Tr. at 40.) Appellant was then advised that she was under arrest for suspicion of driving under the influence. Id. Officer O’Connor read Appellant her rights and transported her to the police department. Id. At the Narragansett Police Department, Officer O’Connor read Appellant her “Rights for Use at Station” and offered her the opportunity to make a confidential phone call. 4 (Tr. at 44.) After Appellant made a phone call, Officer O’Connor asked Appellant if she would be willing to submit to a chemical test. Id. Appellant verbally refused to take the chemical test and signed a document stating her intent to refuse the test.4 Id. Subsequently, Officer O’Connor prepared a sworn “affidavit” recounting Appellant’s actions and arrest.5 (Tr. at 45.) The document was signed by the officer, but was not validated, or sworn to under oath by the officer. (Tr. at 46-47.) On cross-examination, Officer O’Connor admitted that the affidavit prepared on the night of the arrest was not sworn to in the presence of a notary. (Tr. at 56.) Officer O’Connor later noted that a second affidavit, identical to the information in the initial affidavit, was notarized the day before this trial, on February 19, 2013, and three months after the arrest. Id. Officer O’Connor also admitted that he did not give the Appellant a copy of the notarized affidavit until the morning of the trial, February 20, 2013. (Tr. at 56-57.)6 In rendering his decision from the bench, the trial judge was satisfied that the Town met its burden of proof in presenting its case.7 (Tr. at 65.) The judge was satisfied with Barrett’s testimony, who he claimed was a “particularly credible disinterested witness.” Id. The judge stated that he had “no alternative” but to sustain the violation. (Tr. at 69.) The trial judge then 4 Officer O’Connor composed a report of the incident; however, the trial judge determined that the report of the Officer could not be considered a Sworn Report because it was not signed and verified. This was considered a harmless error by the trial judge. (Tr. at 72.) 5 It should be noted that this was the first of two affidavits prepared in this case. 6 The trial judge did not admit the second affidavit into evidence. 7 Appellant’s attorney argued that the Town did not prove by clear and convincing evidence that there was operation. Barrette testified that Appellant’s vehicle was parked at the stop sign at the time it was struck. Counsel for Appellant argued Appellant was outside the car when the Officer arrived at the scene. The judge stated that it is “more than enough to infer operation.” (Tr. at 66.) 5 sustained the charged violation of § 31-27-2.1.8 (Tr. at 75.) The Appellant, aggrieved by this decision, filed a timely appeal to this Panel. The Panel’s decision is rendered below. THE DISTRICT REVERSED AND GRANTED APPELLANT'S APPEAL EFFECTIVELY DISMISSING THE CHARGE AGAINST HER. APPELLANT WAS REPRESENTED BY ATTORNEY JOHN R. BERNARDO III