This a legal article authored by Rhode Island criminal defense lawyer, David Slepkow. Mr. Slepkow is a also a RI drunk driving criminal defense attorney.
1) Should I refuse a Breathalyzer test in Rhode Island?
The answer is – “it depends”. There is no good definitive answer to this question in Rhode Island. The only proper answer is it depends on the circumstances. If you refuse the Breathalyzer test, your license and/or privilege to drive in Rhode Island will be automatically suspended after the arraignment but prior to any hearing or disposition of the matter on the merits. If you refuse a Breathalyzer test, the chances of winning are relatively slim.
In a Breathalyzer case, the state must only prove that they had probable cause to arrest you and reasonable suspicion to believe that you are operating a motor vehicle in Rhode Island while intoxicated, that you were properly read your rights, and that you did in fact refuse the Breathalyzer. Even if you refuse, the state will typically still charge you with criminal DUI based on the officer(s) observations. Many, but not all, town and cities will dismiss the criminal observation case if you agree to take a plea for minimum sanctions (at least 6 months) at the refusal hearing.
If you lose the Breathalyzer case, for a first offense within five years, the penalty will be six months to twelve months loss of license as well as fines and driver retraining and community service. You will also be required to obtain expensive insurance on your automobile. The advantages of a refusal over a criminal case is that the penalty for a first refusal is a civil violation that will not be a criminal conviction on your record. (Please note that a 2nd offense refusal in Rhode Island is now a criminal offense!)
If you take the Breathalyzer test and fail it, you will be charged with a criminal DUI. These cases are much more difficult for the prosecution to prove than a Breathalyzer refusal. Your chances of winning a criminal DUI case is much greater than a refusal case! If you take the Breathalyzer, you will not automatically lose your license at the arraignment (as you would in a refusal case). You will only lose your license if you are convicted. In other words, you can drive while the case is proceeding. If convicted in a criminal DUI case first offense, you will lose your license anywhere between 3 months to 6 months.
If convicted, 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.
2) Are there any bright line rules in Rhode Island?
a) Yes. If you are absolutely positive you will pass, take the Breathalyzer test.
b) If someone is injured in an accident – refuse the Breathalyzer.
c) If you already have a criminal DUI within the past 5 years, then you must refuse because you face mandatory jail time.
d) If you are in a profession in which a criminal conviction may hurt your career or subject you to professional discipline, i.e. lawyer, politician, teacher, then you probably should refuse.
If the bright line rules don’t apply, then what?
Use a balancing test. You need to balance your need to drive your automobile versus what effect a criminal conviction will have on your life. If you absolutely need your license for your job and a criminal conviction will not affect your life, then take the test if none of the bright line rules (such as an injury) apply.
If you take the Breathalyzer test, you will not automatically lose your license and can drive while the criminal case is pending and will only lose your license if you lose the case. Your chances of winning the criminal case and retaining your license is much greater than a refusal case. 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.
3) Does Rhode Island allow a person to drive for work after their license is suspended for DWI or refusal?
Yes. there is a law allowing people to drive to and from work with certain rules.
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.