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
MOST 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.
Result: 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.
Result: 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.
Result: 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.
Result:
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.
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 Breathalyzer Refusal Attorney 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. |
