Should an accused pulled over on suspicion of drunk driving in Rhode Island refuse a breathalyzer upon the request of a law enforcement official? There is no definitive clear answer to this question. The correct answer depends on the facts and circumstances, at that time. However, in the vast majority of breathalyzer requests by police, a person should refuse the breathalyzer. This Rhode Island criminal law article is authored by a Drunk driving defense lawyer in Rhode Island.
If you refuse the Breathalyzer test requested by the police, your license and/or privilege to drive in Rhode Island and Providence Plantations will be automatically suspended after the arraignment but prior to any hearing or disposition of the matter on the merits. A breathalyzer refusal on your record is better than a dui on your record because a first offense refusal is a civil matter and a dui is a criminal cause of action.
Are there any definitive rules to determine if a citizen should refuse a chemical test in RI?
- Yes. If a motorist is 100 percent confident that he or she will pass the chemical test, submit to the Breathalyzer test.
- If someone is injured or killed in a motor vehicle accident – YOU MUST ALWAYS REFUSE the Breathalyzer. I repeat DO NOT TAKE THE BREATHALYZER if someone is injured or killed in an accident!
- If you already have at least one criminal DUI within the past 5 years, then you MUST REFUSE because you face mandatory jail time. Rhode Island laws states that it is MANDATORY for the judge to sentence: “the individual shall be sentenced to not less than ten (10) days nor more than one year in jail. The sentence may be served in any unit of the adult correctional institutions in the discretion of the sentencing judge; however, not less than forty-eight (48) hours of imprisonment shall be served consecutively.” RI Gen L § 31-27-2 (2012)
- If you are a professional or in a profession in which a criminal conviction could damage your career aspirations, you need to drive at work or a conviction will cause you to lose your employment or subject you to professional discipline, i.e. lawyer, politician, teacher, then you probably should refuse. (Please note that pursuant to recent changes in RI law some people may qualify to driver to and from work)
If the bright line rules are not applicable, then what do you do?
Utilize a balancing test. A vehicle operator under suspicion for drunk driving needs to balance his need to drive an automobile versus what effect a criminal drunk driving conviction will have on his life prospects. If you absolutely need your license to drive and a criminal conviction will not affect your life, than take the test if none of the bright line rules (such as an injury or death) apply.
If you submit to a Breathalyzer test at the request of a law enforcement official, you will not automatically lose your license and can drive during the pendency of the case. In a criminal prosecution for drunk driving you will only have your drivers license suspended if you are convicted. Your chances of winning a DUI criminal prosecution and retaining your RI State license is much greater than a breathalyzer refusal case at the Traffic Tribunal. However, the flip side is that if you lose the criminal case, then you will have a conviction on your record and minimum jail potential for a second offense.
If you refuse a Breathalyzer test, the chances of prevailing after a hearing are slim
If you are charged with either criminal drunk driving or civil refusal to take a breathalyzer test, than you should contact an experienced RI drunk driving criminal defense attorney A Providence drunk driving lawyer will fight your case to get you the justice you deserve. In a civil refusal testimonial hearing, the state of RI is only required to establish that the investigating officer had probable cause to make an arrest and reasonable suspicion that you were are operating a motor vehicle while intoxicated. The State of Rhode Island must also present testimony and establish that you were properly read your rights, and that you refused.
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Most Rhode Island residents are unaware that even if you refuse to take the breathalyzer and you do not take the test, the State of Rhode Island usually will still charge you with driving under the influence premised on the police officer(s) observations. In legal parlance, this is what is sometimes known as an “observation case”. Under these circumstances, the accused is charged with both a criminal observation case as well as a civil refusal case. Many, but not all, towns & cities in Rhode Island will dismiss the criminal observation case if the criminal accused agrees to cop a plea for minimum sanctions (at least 6 months) at the refusal hearing at the traffic tribunal.
Penalties for 1st, 2nd and 3rd offense breathalyzer refusal
If a Justice of the RI traffic tribunal finds you guilty of refusal to submit to a chemical test, pursuant to Gen. Laws 1956 § 31-27-2.1, which is a civil violation then penalties will be imposed by the Court. If this is a a 1st violation within a 5 years, the penalty will be a minimum of 6 months to a maximum of 12 months loss of Rhode Island driver’s license as well as substantial monetary fines, driver retraining and community service. (In the event that you do not have a RI license then the Court can only revoke your privilege to drive in the Ocean State. The Department of Motor Vehicle (DMV) will likely send the information to your licensing state for potential reciprocal action. The department of motor vehicles will require that a motorist submit an SR-22 from their insurance to show proof of financial responsibility.
What happens if you refuse a breathalyzer in RI?
The advantages of a civil failure to submit to a chemical test refusal, over a criminal driving under the influence case is that the penalty for a 1st refusal is a civil violation that will not be a criminal conviction on your record. A second offense refusal to submit to a chemical test is now a criminal offense in RI! A second offense shall result in a one-year suspension of your license to drive and up to $1,000 in fines, and potential / possible jail. A third offense breathalyzer refusal in RI will result in up to a five-year drivers license suspension and a $1,000 fine, and potential incarceration. If a criminal accused submits to a chemical test and fails, he or she will be charged with a criminal driving under the influence.
Criminal dui cases determined in RI District Court are much more difficult for the state or city solicitor to prove than a refusal.
Breathalyzer refusal law in RI
“(a) Any person who operates a motor vehicle within this state shall be deemed to have given his or her consent to chemical tests of his or her breath, blood, and/or urine for the purpose of determining the chemical content of his or her body fluids or breath. No more than two (2) complete tests, one for the presence of intoxicating liquor and one for the presence of toluene or any controlled substance, as defined in § 21-28-1.02(8), shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle within this state while under the influence of intoxicating liquor, toluene, or any controlled substance, as defined in chapter 28 of title 21, or any combination of these. The director of the department of health is empowered to make and file, with the secretary of state, regulations that prescribe the techniques and methods of chemical analysis of the person’s body fluids or breath and the qualifications and certification of individuals authorized to administer the testing and analysis.” § 31-27-2.1. Refusal to submit to chemical test.
There is a much greater chance for your RI drunk driving criminal defense lawyers to win a dui cases then refusal violation hearings
Your chances of winning a RI criminal DUI case is far greater than a breathalyzer refusal case! If you submit to the Breathalyzer and are therefore not charged with a refusal, you will not automatically lose your license at the arraignment (as you would in a breathalyzer refusal case at the RI Traffic Tribunal in Cranston) In a criminal DUI case, a criminal defendant will only lose his or her drivers license if convicted. If an accused agrees to a criminal plea to a dui or is found guilty to the criminal offense of drunk driving then such plea or guilty finding will be a criminal conviction because a fine is automatically imposed. Pursuant to RI law, any criminal charge (dui or otherwise) that results in a fine imposed by the Court will constitute a conviction.
Can I drive to work after a dui?
If you are charged with a refusal or a dui you may qualify for a hardship license. This type of license is only allowed for first time breathalyzer refusals as well as first or 2nd offense dui. A hardship license cannot be used like a normal license and can only be utilized to drive back and forth to work. In order to obtain a hardship license, you must have an ignition interlock device installed on your motor vehicle. In order to get a hardship license you must request such license from the judge and approval is not automatic.
Can I drive while my criminal dui case is being resolved?
If you submit to a breathalyzer test and are charged with a DUI then you can drive your car, truck or motor vehicle while the case winds through the criminal justice system. This is in Stark contrast to a refusal violation hearing in which you must surrender your license and not drive at the arraignment in the beginning of the case. If convicted in a criminal DUI case 1st offense, you will lose your drivers license from a minimum of 30 days to up to a year. Please note that there are enhanced penalties for 2nd, 3rd and 4th offenses which include mandatory jail time as well as far longer license suspensions. There are increased penalties depending on the amount of alcohol in the defendant’s system. See, § 31-27-2 Driving under influence of liquor or drugs.
If convicted of driving under the influence, you will also have to take driving classes, do community service and obtain expensive insurance for your vehicle. In a criminal DUI, the state must not only prove probable cause to make the arrest, they must prove beyond a reasonable doubt that you were too intoxicated to operate a motor vehicle in the State of Rhode Island as well as proving that you were properly read your rights and that other legal requirements were met. If you lose the criminal DUI case, you will have a criminal conviction on your record. A criminal conviction can severely hurt employment opportunities and in some case lead to loss of a job. Also, a second or third conviction for DUI/DWI will mean mandatory jail time.
Penalties for First offense criminal dui:
1st violation dui -blood alcohol concentration (.08%) but less than t (.1%):
- “fine of not less than one hundred dollars ($100) nor more than three hundred dollars ($300),”
- ” ten (10) to sixty (60) hours of public community restitution”
- “and/or shall be imprisoned for up to one year. “
- “attend a special course on driving while intoxicated
- “driver’s license shall be suspended for thirty (30) days up to one hundred eighty (180) days.”\
1st violation dui- blood alcohol level (.1%) or above but less but less (.15%)
- “fine of not less than one hundred ($100) dollars nor more than four hundred dollars ($400)”
- “required to perform ten (10) to sixty (60) hours of public community restitution”
- “and/or shall be imprisoned for up to one year. The sentence may be served in any unit of the adult correctional institutions in the discretion of the sentencing judge.”
- “The person’s driving license shall be suspended for a period of three (3) months to twelve (12) months.”
- “attendance at a special course on driving while intoxicated’
- “The person’s driving license shall be suspended for a period of three (3) months to twelve (12) months”
1st violation-dui- blood alcohol level (.15%) or above
- ‘a fine of five hundred dollars ($500)”
- “shall be required to perform twenty (20) to sixty (60) hours of public community restitution”
- “and/or shall be imprisoned for up to one year. The sentence may be served in any unit of the adult correctional institutions in the discretion of the sentencing judge”.
- “The person’s driving license shall be suspended for a period of three (3) months to eighteen (18) months.”
- “Attendance at a special course on driving while intoxicated.”
There are enhanced penalties for 2nd, 3rd and greater than 3 dui offenses- see RI laws 31-27-1
Does Rhode Island allow a person to drive for work after their license is suspended for DWI or refusal?
Yes. Under limited circumstances if a person qualifies he or she can drive to work. This is called a “hardship license”. Some people call this a Cinderella license. This law was amended in 2015 allowing a person to drive to and from their place of employment so they can work.
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If you were arrested for breathalyzer refusal or dui/ dwi/ oui, contact a RI criminal lawyer who also a Rhode Island breathalyzer refusal attorney. A DUI lawyer in RI will make sure your legal rights are protected and provide you aggressive legal representation. If you are seeking an AFF firefighting foam lawsuit attorney, contact us.
Rhode Island Attorneys legal Notice per RI Rules of Professional Responsibility:
The Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer or attorney as an expert or specialist in any field of practice.