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I took a breath test when the Police asked. Why am I charged with a Refusal?

Posted by Matthew Marin | Oct 23, 2017 | 0 Comments

We very often speak with potential clients who have been charged with driving under the influence and refusal to submit to a chemical test. In many cases, they are very confused about the particular charges they are facing because they are facing charges of chemical test refusal and DUI even though they took a breath test when the police asked.

The Rhode Island DUI law can be very confusing and involves the intersection of a number of different legal statutes. This particular confusion comes from the completely understandable and common confusion between the preliminary breath test law and the chemical test refusal law. 

If you took a breath test on the roadside (not at the police station) and the breath test you took was from a handheld machine operated by the police officer, you submitted to what is referred to as a preliminary breath test (also commonly referred to as a “PBT”). A preliminary breath test is a DUI investigation tool utilized by the police to establish probable cause to arrest and charge a suspect with DUI. The PBT statute specifically provides that the results of the preliminary breath test may be utilized for probable cause purposes ONLY. The preliminary breath test is NOT admissible into evidence at a criminal DUI trial. If you refuse to submit to a preliminary breath test, you can be charged with refusal to submit to a preliminary breath test, which carries a maximum penalty of $85 fine.

Many people who take a roadside breath test (PBT) feel that they shouldn't have to or don't want to take a second test as they already took one. But, the chemical test refusal laws says that the police can ask you to take a second breath test at the police station. This second breath test is commonly referred to as a chemical test or a chemical breath test.

Because the roadside breath test cannot be used against you at trial, the police will always ask a suspect to submit to a chemical breath test at the police station. Taking the preliminary breath test on the roadside does not allow you to refuse to take a chemical breath test at the police station. If you refuse to submit to the chemical breath test at the police station, you will be charged with refusal to submit to a chemical test which carries substantial penalties involving fines, community service, DUI school, and a lengthy license suspension.

Unfortunately, the common driver stopped and under investigation for DUI is not aware of the implications of taking and/or refusing both the preliminary breath test and the chemical breath test. Moreover, the law says that the police do not have an obligation to explain any of this to you. They are simply given forms and told to read the forms.

If you have been arrest for DUI and Refusal and you are confused about how and why you ended up arrested and charged, contact us today. We have nearly a decade of experience untangling the DUI laws and can break down your situation and explain it in understandable terms.

About the Author

Matthew Marin

Attorney Matthew T. Marin is a highly skilled criminal defense lawyer with an outstanding track record in Rhode Island and Massachusetts. With expertise in DUI/DWI, drug offenses, domestic violence, and white-collar crimes, he is dedicated to providing personalized and effective representation for his clients. A "Rising Star" by Super Lawyers and a member of the National College for DUI Defense and the National Trial Lawyers Top 100, Attorney Marin is committed to staying current with the latest legal developments and giving back to his community through pro bono work.


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Attorney Marin Named A SuperLawyer for Ten Consecutive Years 2014-2023

Attorney Matthew Marin has been named a Rhode Island SuperLawyer for 10 consecutive years from 2014 thru 2023. 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 Members of the National College for DUI Defense

Attorneys Matthew Marin and Kensley Barrett are both Rhode Island General Members 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.