Rhode Island Breathalyzer Refusal Defense
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- Rhode Island DUI Information
- Rhode Island DUI Laws and Penalties
- Defending your RI DUI Accusation
- Rhode Island Breathalyzer Refusal information
- Defending your RI Breathalyzer Refusal
- What to expect at your Rhode Island DUI Trial
- Field Sobriety Test information
- DUI Stops for Reasonable Suspicion
- Rhode Island Court Information
Defending your Rhode Island Breathalyzer Refusal Accusation
As a former Special Assistant Attorney General, Mr. Macktaz intimately understands the elements of a Breathalyzer Refusal case in the courts of Rhode Island. Things you should know about refusing a breath test in RI:
- If you refuse the Breathalyzer test your license and privilege to drive in RI is automatically suspended at your arraignment. This happens prior to any hearing or disposition of the matter on its merits. The Defendant operated a motor vehicle
- The state of Rhode Island only needs to prove that they had probable cause to arrest you and only need reasonable suspicion to believe that you are operating a motor vehicle under the influence.
- They must confirm that you were properly read your rights and you did in fact refuse the chemical breath test.
- Even if you refuse the test you will most likely still be charged with criminal DUI based on the officer (s) report and observations.
Understanding these provides the opportunity to defend this using one or many of these types of defenses.
Challenging the Constitutionality of the Stop
- The Police cannot stop a driver unless he has reasonable suspicion to believe a crime has been, or is about to be, committed. The police may state an individual for any traffic violation.
- Roadblocks have been held unconstitutional in Rhode Island.
- A car cannot be stopped based on an anonymous tip or 911 call.
Challenging the Admissibility of the Breath Test Results
- The police must have probable cause to request you submit to a chemical test for purposes of a criminal charge.
- The police must advise you of your right to have an independent chemical test performed by a physician or hospital of your choosing and afforded a reasonable chance to exercise this right.
- The police must observe you for at least 15 minutes prior to you taking the breath test. *See article on "Mouth Alcohol” in the article section of this site.
- A true copy of the breath test results must be mailed to you within 72 hours of the test.
- The breath test machine must be in full compliance with the regulations set out by the Department of Health.
- The breath test operator must be certified within 365 days of the test.
- Two complete samples must be given within a 30 minute period.
- The two samples must be within a .05% agreement of each other.
Using Booking Room and/or Patrol Car Videos
Many police stations have video surveillance to record all suspects during processing. Additionally, more and more patrol cars are equipped with mounted video equipment which records everything from the stop of the car to the field sobriety testing at roadside. Gaining access to these videos may provide exculpatory evidence showing the favorable performance and balance of the suspect. The video will also capture the officer’s administration of the test which, if given improperly, would provide a basis to challenge the officer’s credibility.
Independent Witnesses
It is not just the prosecution who is allowed to call witnesses at trial. If you were in direct contact with one or more people shortly prior to your arrest, you may call them to testify to your lack of intoxication. It may be your passenger, the waitress at the restraint you ate, the bartender where you just left or even the family who picked you up from jail. Any lay witness, meaning they do not have to be an expert, can testify to their opinion regarding your sobriety.
Miranda Warnings not Given
Any interrogation that takes place while in police custody must have been preceded by a Miranda warning. If not given, any statements made as a result of questioning would be excluded from trial. This is particularly important when incriminating statements were made by you after your arrest.
Failure to Conduct Observational Period
Rhode Island law requires the police to observe a suspect for at least 15 minutes prior to administering a breath test. This is because any mouth alcohol, which could be the result of recent alcohol consumption, hiccupping, burping or vomiting, would cause a false elevated reading.
Expert Witnesses
The defendant has an absolute right to present expert witnesses in his own defense. DUI law is extremely complex and it may be necessary to call an expert to testify to such issues as; toxicology, chemistry, biology, breath testing instrumentation and/or functioning.
Medical and Health Problems
Pre-existing medical conditions related to your brain, legs, neck, back and vision can eliminate the validity of field sobriety testing results. Acid reflux, diabetes, certain prescription medicines can have a dramatic effect on your breath alcohol testing results.
Bad Weather
Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.
Retrograde Extrapolation
When you consume alcohol, it takes time for it to absorb into your system. Essentially, you could have a number of beers or alcohol and not feel the effects to sometime later after you stop drinking. When a breath test is given you at the police station, it could very well be up to an hour after you were last driving. The breath test will give a result for what your BAC at the time of the test, but what about your BAC an hour prior, when you were actually driving? Retrograde extrapolation is the formula for determining BAC at a prior time. This may very well lead to your BAC being below the legal limit at the time you were actually driving, even though it was above the limit at the time of the test.
Interfering Substances
The breath testing machine works by measuring the amount of alcohol in your breath. If you have been exposed to certain fumes, substances and/or particles, a false reading could very well take place. A common example of this is a painter who is exposed to, and has been inhaling, certain paint fumes throughout the day. Other substances such as cough drops, Listerine, or ethanol based products could have an impact as well.
Operating on Private Property
Operation is an essentially element to Driving under the Influence.
Where you actually operating the car or just sitting in or near it? Was your car on a public or private road? Was your car being operated on a Rhode Island road or a road that is owned by the Federal Government? A throughout investigation of where you were actually observed operating your car is required for a successful defense.
Contact Rhode Island DUI Lawyer Joshua Macktaz by Email or call today at (401) 861-1155 and we will respond to you as soon as possible.
Successful Breathalyzer Refusals in Rhode Island Case Defenses by Attorney Macktaz
Recent Wins
Criminal Charges:
Driving Under the Influence 1st Offense; Breathalyzer Refusal 2nd Offense
Police Report: East Providence Police observe Client weaving on 195E and then straddling the right breakdown lane. After stopping Client, and in addition to the usual observations of odor of alcohol, bloodshot eyes and slurred speech, police observe that Client’s pants are around his ankles and he has urinated himself.
Result:
DUI: REDUCED to Reckless Driving with no loss of license
2nd REFUSAL: DISMISSED
Criminal Charges:
Breathalyzer Refusal 2nd Offense
Police Report: Police respond to an accident involving serious injuries. Police observed client to have an extreme odor of alcohol, bloodshot and watery eyes and slurred speech. Client fails three (3) field sobriety tests and admits to police that he had consumed several alcoholic beverages.
Results:
DISMISSED
Criminal Charges:
Breathalyzer Refusal; Right Half of Roadway; Lane Roadway Violation; Driving an Unsafe Vehicle; Failing to Notify Authorities after Accident
Police Report: Client struck a pedestrian with her vehicle and fled the scene of the crime. Police stopped client and observed two (2) flat tires, and heavy front-end damage to her vehicle. Police observed client to have a strong odor of alcohol emitting from her breath, bloodshot watery eyes and a reddish face. Client was unable to complete field sobriety tests and failed all three (3) tests.
Results:
Count One: DISMISSED
Count Two: DISMISSED
Count Three: DISMISSED
Count Four: DISMISSED
Count Five: DISMISSED
Criminal Charges:
Breathalyzer Refusal; Right Half of Roadway
Police Report: Police observe client’s vehicle cross solid yellow line with both driver’s side front and rear tires. Police observe client’s vehicle strike the right side curbing with his left front wheel. Police stop client and observe him to have a strong odor of alcohol on his breath, blood shot eyes, and a confused manner. Client fails three (3) field sobriety tests and registers a .210 on the preliminary breath test.
Results:
Count One: DISMISSED
Count Two: DISMISSED
Criminal Charges:
Breathalyzer Refusal; Refusal to Take Preliminary Breath Test; Operating an Unregistered Motor Vehicle; Operating without Proof of Insurance
Police Report: Client runs a stop sign and causes a major accident. Police arrive and observe client to have a very strong odor of alcohol on her breath, glassy and blood shot eyes. Client fails three (3) field sobriety tests, and is uncooperative with the police officers.
Results:
Count One: DISMISSED
Count Two: DISMISSED
Count Three: DISMISSED
Count Four: DISMISSED
Contact Rhode Island DUI Lawyer Joshua Macktaz by Email or call today at (401) 861-1155 and we will respond to you as soon as possible
Rhode Island Breathalyzer Refusal - Why or Why not?
Due to the serious and deadly results often resulting from alcohol related accidents, Rhode Island takes a hard stance against drunk driving. The state's stringent laws and penalties are based on age and blood alcohol content (BAC) levels. However, it's important to remember the following points:
- Any DWI resulting in death of another person is considered a felony.
- Any driver under 21 years old found with an open container in his or her vehicle may face a 30 day suspension.
- "Implied Consent" means that any driver behind the wheel of a vehicle gives the state permission to administer a breathalyzer exam.
The state defines driving while intoxicated (DWI) as any driver 21 or older with a BAC of .08% or higher. The law is less tolerant for drivers under 21 who can be charged with DWI for a BAC of .02% or higher. You can find a full account of Rhode Island's DWI policies in Title 31, Chapter 27 of the State of Rhode Island General Laws.
So should you refuse a breathalyzer test if you are stopped and confronted with the possibility of a Rhode Island DUI arrest? If you take the test you will not automatically lose your license. If you FAIL the test you will be charged criminally but you retain your license until convicted. You then have to weigh the value of your ability to drive versus what having a criminal conviction on your record will do to your life. This is a choice you need to make. So, if you know you will fail the test but can live with a potential criminal conviction but not the automatic loss of your license for 6-12 months then take the test.
Criminal DUI charges provide a better margin of victory as the state must prove beyond a reasonable doubt that you were too intoxicated to operate a motor vehicle in Rhode Island. They must also prove you were properly read your rights and they met all legal requirements during the arrest. If you lose a criminal DUI case you will have a criminal conviction on your record which could affect employment opportunities or even cost you your job. 2nd and 3rd DUI convictions mean mandatory jail time in Rhode Island as well.
Contact Rhode Island Breathalyzer Refusal Lawyer Joshua Macktaz by Email or call today at (401) 861-1155 and we will respond to you as soon as possible.
If you are charged with your 2nd or 3rd breathalyzer refusal in the state of Rhode Island these are the penalties you face:
First Offense Breathalyzer Test Refusal
- Fined $200-$500
- Community Service for 10-60 hours
- Suspended license six months to one year
- Face a Highway Safety Assessment ($500 fee) conducted by the Community College of Rhode Island (CCRI) and possible enrollment in a driving school and/or an alcohol treatment program
- Pay a $200 fee to support the department of health's chemical testing programs
Second Offense Breathalyzer Test Refusal within Five Years
- Fined $600-$1000
- Suspended license 1-2 years
- 60-100 hours of community service
- Mandatory alcohol or drug treatment
- Face a Highway Safety Assessment ($500 fee) conducted by the Community College of Rhode Island (CCRI)and possible enrollment in a driving school and/or an alcohol treatment program
- Pay a $200 fee to support the department of health's chemical testing programs
Third Offense Breathalyzer Test Refusal within Five Years
- Fined $800-$1,000
- Up to one year in jail
- License suspended 2-5 years
- Mandatory 100 hours of community service
- Alcohol or drug treatment
- Hearing to determine whether license may be reinstated
- Face a Highway Safety Assessment ($500 fee) conducted by the Community College of Rhode Island (CCRI) and possible enrollment in a driving school and/or an alcohol treatment program
- Pay a $200 fee to support the department of health's chemical testing programs
Contact Rhode Island DUI Lawyer Joshua Macktaz by Email or call today at (401) 861-1155 and we will respond to you as soon as possible
- Rhode Island DUI Information
- Rhode Island DUI Laws and Penalties
- Defending your RI DUI Accusation
- Rhode Island Breathalyzer Refusal information
- Defending your RI Breathalyzer Refusal
- What to expect at your Rhode Island DUI Trial
- Field Sobriety Test information
- DUI Stops for Reasonable Suspicion
- Rhode Island Court Information
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter. Also, the Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer as an expert or specialist in any field of practice.
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