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RHODE ISLAND CRIMINAL DEFENSE BLOG

Are Second Offense Chemical Test Refusal Charges in Rhode Island Constitutional?

Posted by Matthew Marin | Apr 22, 2016 | 0 Comments

The United States Supreme Court heard arguments this week on a case that could alter the State of Rhode Island's ability to prosecute individuals for second and third offense charges of refusal to submit to a chemical test.  Currently, the Rhode Island law provides that a first offense (within a five year period) for refusal to submit to a chemical test is a civil traffic violation.  Subsequent offenders face criminal charges for second, third, and subsequent violations within the five year lookback period.  These second and third violations carry up to six months and one year in prison.  This statutory scheme has been in place for a number of years, and has not faced significant legal challenge in the State of Rhode Island.

SUPREME COURT JUSTICES EXPRESS DOUBT ABOUT CONSTITUTIONALITY OF EXISTING LAWS

That may be changing, however.  Just this week during oral arguments regarding laws in North Dakota and Minnesota, Justice Anthony Kennedy said that the states are asking for "an extraordinary exception" by making it a crime for people to assert their constitutional rights.  Justice Stephen Breyer pointed to statistics showing that it takes an average of only five minutes to get a warrant by phone in Wyoming and fifteen minutes to get a warrant in Montana.  Rhode Island is one of about a dozen states that criminalize a suspect's refusal to submit to chemical testing during a DUI investigation.

HOW COULD THIS CASE IMPACT SECOND OFFENSE REFUSAL CHARGES IN RHODE ISLAND?

The case to be decided by the United States Supreme Court could have a deep impact on the Rhode Island DUI Laws and statutory scheme with regard to chemical test refusal charges.  Second and third offense chemical test refusal charges are prosecuted frequently in the Rhode Island District Court.  With these arguments pending in the highest court, those facing these types of charges in Rhode Island should file constitutional challenges.

The constitutional challenge to the law is straightforward.  Our Rhode Island Supreme Court as well as the U.S. Supreme Court has deemed a breath or blood test to be a "search" within the meaning of the Fourth Amendment.  The R.I. Supreme Court has ruled that motorists, who are suspected of driving under the influence, have the "right" to refuse to submit to chemical testing.  The State, by criminalizing the refusal to submit to chemical testing, is now imposing criminal punishment on individuals for exercising their constitutional right to be free from unreasonable warrantless searches and seizures.

THE EXISTING LAW PROVIDES CRIMINAL PUNISHMENT FOR CITIZENS WHO EXERCISE THEIR CONSTITUTIONAL RIGHTS

A simple analogy would may be instructive.  If the police thought that evidence of a crime was contained within your home they would be required by the constitution to obtain a warrant to search your home.  The warrant must be issued by a neutral and detached magistrate.  The Legislature, like they did in the refusal context, could say that it is too burdensome to get a warrant so instead they pass a law stating that refusal to let the police search your home when they think evidence of a crime would be found inside is a criminal "refusal to allow a search."  Then, when the police arrive at your home, don't have a warrant to search, and ask for your permission to search the home you have two choices (1) allow the police to search without a warrant and without probable cause or (2) be arrested for refusing to permit the police to search your home.  This is the same position that suspected drunk drivers are put in by the Rhode Island law criminalizing the refusal to submit to a chemical test.

HAVE YOU BEEN CHARGED WITH REFUSAL TO SUBMIT TO A CHEMICAL TEST IN RHODE ISLAND?

If so, you need to contact an experienced Rhode Island DUI defense attorney immediately to protect your rights.  At the Law Offices of Matthew Marin, we have experience litigating cutting edge legal issues like the one presently before the U.S. Supreme Court.  If you have been charged with a second or third offense chemical test refusal, you need to begin fighting these charges quickly to protect your rights and your drivers license.  We are available 24/7 at 401-228-8271 or by email at mm@matthewtmarin.com.

Visit Our DUI and Chemical Test Refusal Pages for more information on the charges, penalties and potential defenses:

http://www.matthewtmarin.com/rhode_island_dui_defense_lawyer.html

http://www.rhode-island-dui-lawyer.com

About the Author

Matthew Marin

My name is Attorney Matthew Marin. I have dedicated my career to defending those charged with criminal offenses throughout Rhode Island. If you have been arrested or are under investigation for a criminal offense, we understand that are likely in an unfamiliar situation that can be extremely intimidating and even paralyzing. You may feel as if you do not know where to turn or who to ask for help. Fortunately, you have come to the right place to begin your search for answers and a successful resolution to your situation. We have extensive experience assisting thousands of clients facing drunk driving charges, domestic violence charges, and drug charges throughout Rhode Island.

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Attorney Marin Named A Super Lawyers Rising Star Three Consecutive Years 2014-2016

Attorney Matthew Marin was named a Rhode Island Rising Star by Super Lawyers for 3 consecutive years from 2014 thru 2016. Each year, no more than 2.5 percent of the lawyers in Rhode Island are selected by the Research Team at Super Lawyers to receive this honor. Super Lawyers selects lawyers who have attained a high degree of peer recognition and professional achievement in their practice area.


Rhode Island Member of the National College for DUI Defense

Attorney Marin is a Rhode Island General Member of the National College for DUI Defense. Members represent some of the most experienced and cutting edge DUI defense attorney's throughout the Country. Nationwide, DUI laws are extremely complex and constantly changing and the College facilitates the exchange of innovative defenses throughout the Country.

NCDD National College for DUI Defense: Matthew Marin