Refusal to Submit to a Chemical Test

Criminal Defense Lawyer John L. Calcagni, III

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Refusal to Submit to a Chemical Test

Criminal Defense Lawyer John L. Calcagni, III

Schedule a Consultation

Refusal to submit to a chemical test charges in Rhode Island

The phrase “chemical test” is used to refer to the separate tests that are conducted to determine the presence of alcohol and/or drugs and in a person’s body.

When a chemical test is conducted, the test will either be by a breathalyzer machine, blood draw, or a urine sample. Each one of these tests can be used to determine the person’s blood alcohol content “BAC” and/or the presence of illegal drugs in the person’s system.

In Rhode Island, there is a law commonly referred to as an “Implied Consent Law” which states that when a person is suspected of driving under the influence of alcohol or drugs he or she is required to submit to a Chemical Test when requested by police.  

If a person refuses to comply with a police request that he or she submit to such a test, the person may be charged with Refusing to Submit to a Chemical Test.  While test participation in voluntary, refusing comes with harsh penalties consequences that may have a very large impact on a motorist’s current life and future.

First offense

Under Rhode Island law, a first offense conviction for Refusing to Submit to a Chemical Test is considered a civil violation and not a crime.  First Offense Refusal cases are adjudicated by the Rhode Island Traffic Tribunal rather than Rhode Island District Court, which has jurisdiction over misdemeanor crimes. 

Second and subsequent offenses

However, a second and subsequent refusal charge is considered a misdemeanor, which is prosecuted in District Court.   Defendants face the possibility of jail time if convicted.  Under Rhode Island Criminal law, Refusal to Submit to a Chemical Test may be found under Rhode Island General Laws, Section 31-27-2.1.

Also, as a practical matter, police may still arrest and charge a motorist for DUI even without a chemical test result.   This is because DUI prosecutions may proceed solely based on officer observations of the vehicle’s operation, the motorist, his or her statements, and performance on field sobriety tests.  There are colloquially referred to by those in the legal community as “observations cases.” 

Prosecuting a DUI case is much easier for police and prosecutors with a valid chemical test result, but far from impossible without one.  Further, in Rhode Island, when a motorist refuses, he or she is typically charged with both DUI and Refusal to Submit to a Chemical Breath Test, prompting him to defend against two separate, yet related charges in two separate courts. 

Legal elements of refusal to submit to a chemical test

In order to be convicted of Refusal to Submit to a Chemical Test under Rhode Island law, the prosecution must prove by clear and convincing evidence that the following legal elements:

  1. that the law enforcement officer making the sworn report had reasonable grounds to believe that the arrested person had been driving a motor vehicle within the state while under the influence of intoxicating liquor;
  2. That the person, while under arrest, refused to submit to the test upon the request of the law enforcement officer;
  3. That the person had been informed of his or her right to have an independent physician do a chemical test; and
  4. that the person had been informed of the penalties if he or she chooses to refuse to submit to a chemical test

What is a hardship license and who qualifies for one?

When a defendant is convicted for a first offense DUI or a first offense Refusal to Submit to a Chemical Test, he or she may request a conditional hardship license. Under Rhode Island Criminal law, the requirements for a Conditional Hardship License may be found under Rhode Island General Laws, Section 31-27-2.8(7).

A hardship license is valid only for 12 hours per day and is for the sole purpose of getting to and from certain places such as a place of employment, necessary medical appointments, job training, schooling, or any other valid reason approved in advance by the sentencing judge or magistrate.

A hardship license will also only be granted in conjunction with the installation of an ignition interlock device. Any conditional driving privileges must be set by the sentencing judge or magistrate after a hearing in which the motorist must provide proof of employment status and hours of employment, or any other legitimate reasons justifying a hardship license.

These shall include, but not be limited to, any unemployment training, schooling, medical appointments, therapy treatments, or any other valid requests set forth by sworn affidavit. Once the hardship period has concluded, the defendant must still follow all other conditions of the ignition interlock system and any other conditions imposed by the court.

A defendant may request and have granted a hardship license at his or her initial suspension hearing and prior to the installation of an ignition interlock device, but issuance of the license will not occur until the defendant offers to the court proof of the interlock installation.

However, a hardship license may not be granted in all circumstances. If the defendant has a prior alcohol-related offense or a prior reckless driving conviction or reckless eluding conviction, within the prior 10 years of the offense, or if the defendant’s instant offense involved a motor vehicle accident, the court has discretion in the granting of the hardship license.

The court may choose to impose up to a 90-day loss of license prior to granting or issuing the hardship license. Furthermore, if the defendant’s instant matter involved a BAC of .15% or above, the court also has discretion and may impose up to 6 months loss of license prior to granting or issuing the hardship license.

If a defendant violates the conditions of his or her hardship license, he or she will be guilty of a misdemeanor for the first and second convictions and will be deemed guilty of a felony for any third or subsequent convictions.

In the case of a first conviction for violating the hardship license requirements, the defendant’s license may be suspended or application for a license may be denied, for any length of time that the Division of Motor Vehicles “DMV” deems proper but not less than an additional 3 months.

The defendant will also pay a mandatory fine of $500 and will be imprisoned for a minimum of 10 days. A second conviction will result in an additional 6 months or more. A defendant will also pay a mandatory fine of $500 for a second conviction under this section within a 5-year period and will be imprisoned for a minimum of 6 months to 1 year.

Any subsequent convictions within a 5-year period will result in license revocation, a fine of $1,000 and imprisonment for a minimum of 1 year. Under Rhode Island Criminal law, these penalties may be found under Rhode Island General Laws, Section 31-11-18.1.

What is an Ignition Interlock System?     

An Ignition Interlock Device (IID), many times referred to as a Breath Alcohol Ignition Interlock Device (BAIID), is slightly larger than a cell phone and is wired to a vehicle’s ignition in order to measure Blood Alcohol Content (BAC) as a condition of starting the vehicle.  

Once installed, a motorist attempting to start the vehicle must first provide a breath sample.  If the interlock device detects alcohol in your blood, measured from your breath, the engine will not start.  As you drive, the device will periodically require additional breath samples to insure the absence of alcohol in the motorist’s system. 

Anyone can have an ignition interlock system installed in their vehicle.  They are typically installed as a court ordered condition of an OUI case disposition. 

Once approved by the court, the motorist is responsible for paying for the installation and removal of the device, along with its monthly maintenance fees.Under Rhode Island Criminal law, Ignition Interlock System requirements may be found under Rhode Island General Laws, Section 31-27-2.8.

Mandatory license suspension reductions for DUI convictions

When a defendant is convicted of a first offense DUI with a BAC under .1% his or her license will be suspended for a minimum of 30 days and imposition of an ignition interlock system for a period ranging from 3 months to 1 year.

When a defendant is convicted of a second offense DUI with a BAC under .15% his or her license will be suspended for a minimum of 45 days and imposition of an ignition interlock system for a period ranging from 6 months to 2 years.

When a defendant is convicted of a third offense DUI with a BAC under .15% his or her license will be suspended for a minimum of 60 days and imposition of an ignition interlock system for a term of 4 years.

Mandatory license suspension reductions for refusal convictions

When a defendant is convicted of a first offense Refusal his or her license will be suspended for a minimum of 30 days and imposition of an ignition interlock system for a period ranging from 6 months to 4 years.

When a defendant is convicted of a second offense Refusal his or her license will be suspended for a minimum of 60 days and imposition of an ignition interlock system for a period ranging from 1 to 4 years.

When a defendant is convicted of a third offense Refusal his or her license will be suspended for a minimum of 90 days and imposition of an ignition interlock system for a period ranging from 2 to 10 years.

When the court orders use of an ignition interlock system, the defendant is required to satisfy certain conditions. The defendant must show proof of installation for the ignition interlock system and must report periodically the proper operation of the ignition interlock system. The defendant ignition interlock system must be monitored every 6 months for proper use and accuracy by someone approved by the Division of Motor Vehicles. The defendant is also responsible for the costs associated with installing, maintaining, monitoring, and removing the ignition interlock system.

Violating an ignition interlock system court order

It is a misdemeanor offense to violate a court order requiring installation and use of an ignition interlock system.  A defendant convicted of this offense may be punished by up to one year in prison and/or a fine of up to $1,000. A violation of the interlock order includes, but is not limited to:

  1. altering, tampering, or in any way attempting to circumvent the operation of an ignition interlock system
  2. operating a motor vehicle that is not equipped with an ignition interlock system; or
  3. soliciting or attempting to have another person start a motor vehicle equipped with an ignition interlock system for the purpose of providing an operable motor vehicle to a person who is prohibited from operating a vehicle not equipped with an ignition interlock system.  

This law and its penalty may be found at Rhode Island General Laws, Section 31-27-2.8.

Potential punishment if convicted of refusal to submit to a chemical test

Much like a conviction for a DUI, a conviction for a Refusal carries severe consequences and hefty fines. Every person convicted of Refusal must pay a fine ranging from $200 to $1,000 depending on whether it is a first offense or second/subsequent offense, as well as a highway safety assessment of $500 and another $200 assessment. Under Rhode Island law, the penalties for a Refusal to Submit to a Chemical Test may be found under Rhode Island General Laws, Section 31-27-2.1.

Penalties for a first offense refusal

If convicted of First Offense Refusal to Submit to a Chemical Test, the defendant will be charged with a civil violation in the Rhode Island Traffic Tribunal.  This is not a criminal offense and will not appear on a criminal background check. 

However, it will appear on the defendant’s driving record. The defendant will be punished by a fine ranging from $200 to $500 and will be required to perform 10 to 60 hours of public community service. The defendant will also have his or her driving license suspended for a period of 6 to 12 months.

In addition, he or she will be required attend a special course on driving while intoxicated or under the influence of a controlled substance and/or alcohol or drug treatment and may prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.  These first offense penalties also apply to a juvenile who is under age 18, however, the term of license suspension is 6 months. 

Penalties for a second offense refusal

If convicted of Second Offense Refusal to Submit to a Chemical Test, within a 5-year period, the defendant will be guilty of a criminal misdemeanor. The defendant will be punished by imprisonment for not more than 6 months and/or a fine ranging from $600 to $1,000.  

In addition, he or she will be required to perform 60 to 100 hours of community service and his or her driving license will suspended for a period of 1 to 2 years. The defendant will be required to attend alcohol and/or drug treatment and will be prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.

Penalties for a second offense refusal of a blood test

A violation with respect to refusal to submit to a blood test is a civil offense. For a second violation within a 5-year period, the defendant will be punished by a fine ranging from $600 to $1,000 and be required to perform 60 to 100 hours of community service.

In addition, the defendant’s driver’s license will be suspended for a period of 2 years, he or she will be required to attend alcohol and/or drug treatment and prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.

Penalties for a third offense refusal

If convicted of a Third or Subsequent Offense Refusal to Submit to a Chemical Test, within a 5-year period, the defendant will be guilty of a criminal misdemeanor.

The defendant will be punished by imprisonment for not more than 1 year and pay a fine in ranging from $800 to $1,000. In addition, he or she will be required to perform not less than 100 hours of public community service and his or her driving license will suspended for a period of 2 to 5 years. The defendant will be required to attend alcohol and/or drug treatment and will be prohibited from operating a motor vehicle that is not equipped with an ignition interlock system.

In addition to the penalties above, when a defendant is charged with a third or subsequent offense Refusal within a 3-year period, before he or she can have their license reinstated, a hearing is required where a judge or magistrate will review the defendant’s driving record, employment history, family background, and any other pertinent factors that may indicate he or she has demonstrated behavior that warrants the reinstatement of his or her driver’s license.  This decision lies within the court’s discretion.

Penalties for a third offense for refusal of a blood test

A third or subsequent violation with respect to refusal to submit to a chemical test of blood is a civil offense.

For a third or subsequent violation within a 5-year period with respect to a case of a refusal to submit to a blood test, the defendant will be punished by a fine ranging from $800 to $1,000 and will be required to perform not less than 100 hours of community service.

His or her driving license will be suspended for a period of 2 to 5 years and will be prohibited from operating a motor vehicle that is not equipped with an ignition interlock system and will be required to attend alcohol and/or drug treatment for the individual.

In addition to the above, when a defendant is charged with a third or subsequent violation within a 3-year period before he or she can have their license reinstated, a hearing is required where a judge or magistrate will review the defendant’s driving record, employment history, family background, and any other pertinent factors that may indicate he or she has demonstrated behavior that warrants the reinstatement of his or her driver’s license.  This decision lies within the court’s discretion.

If you have been charged with refusal to submit to a chemical test and need expert legal representation, contact the Rhode Island Motor Vehicle Defense Attorneys at the Law Office of John L. Calcagni III by email or call today at (401) 351-5100 to schedule a free consultation.

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