Should You Refuse to Take a Breathalyzer and/or Blood Test If You Are Suspected of DUI/OUI?

Updated: Oct 19, 2018


As a Rhode Island criminal defense attorney that has represented hundreds of clients in DUI/OUI cases over the past 25 years, I am frequently asked the question, "if I am pulled over for suspected drunk driving, should I refuse to take a breathalyzer and/or blood test?"


Like most legal questions, it is not all black and white. First, many people are not aware that there are two types of breathalyzer tests that the police officer can request. One is a “roadside breath test,” also known as “preliminary breath test,” which is administered prior to the police officer making an arrest and can only be used for establishing probable cause to justify the officer’s arrest. The preliminary breath test cannot be admitted into evidence during trial. A police officer may also ask you to take a breath or blood test back at the police station, which is referred to as a “chemical test.”


Is it Legal to Refuse a Breathalyzer or Blood Test in Rhode Island?

Yes. Legally, you DO NOT have to grant permission or “submit” to either a breathalyzer and/or blood test. However, Rhode Island has an "implied consent law,” meaning if you refuse, you will automatically receive a Refusal charge. Since this is completely separate from a DUI/OUI charge, it is possible that you can be convicted for a Refusal charge even if you did not drink one drop of alcohol.


What are the Benefits of Refusing to Submit to a Breathalyzer and/or Blood Test?

Mainly, if you agree to submit to a breathalyzer test, the results can be used against you in court and that could be enough evidence to support a DUI/OUI conviction, which has much more severe penalties than a Refusal charge. In Rhode Island, a first DUI/OUI offense mandates a minimum of six (6) months loss of license. And, if you do not have an experienced attorney by your side, you could lose your license for up to one year, and you will likely receive hefty fines, community service and driver retraining classes. Furthermore, your car insurance costs will likely go up even though the Rhode Island Division of Motor Vehicles recently declared that it will no longer require SR-22s, which is an additional vehicle liability insurance for "high-risk" insurance policies.


If this is your first offense, the main advantage in refusing to submit to a breathalyzer and/or blood test is that you may avoid a criminal conviction. Refusing a breathalyzer and/or blood test results in a civil citation, and is not classified as a crime. By accepting the consequences of the civil citation, a prosecutor may drop the DUI – First Offense charge, avoiding a criminal conviction. A second breathalyzer refusal offense, however, is a mandatory criminal conviction. In order to decide whether to refuse a breathalyzer and/or blood test test or take a DUI charge, you should weigh the disadvantage of losing your license versus having a criminal conviction on your record. Rhode Island now has a conditional Hardship License, which may allow you to continue driving to and from work, school or medical appointments while your license is suspended. You should contact Sheeley Law to see if this conditional reprieve could apply to you.


Is it Possible to Beat a DUI/OUI Case?

Yes, a DUI conviction is not a certainty, even if you blew over .08. Before you decide to plead guilty, you should speak with an experienced DUI/OUI defense lawyer. Attorney Ann Sheeley will guide you through the process, help protect your rights and thoroughly review the events leading to your arrest and look for issues that could lead to a dismissal of the charge or reduction to a non-alcohol driving offense. For more information or a free consultation, contact Rhode Island Criminal Defense Attorney Ann Sheeley at 401-619-5555.

Local: 401-619-5555    Toll Free: 866-435-5000

130 Bellevue Avenue, Suite 208 Newport, RI  02840

127 Dorrance Street Providence, RI 02903

7 Waterman Avenue
North Providence, RI 02911

501 Centerville Road, Suite 105 B Warwick, RI 02886

226 Cottage Street
Pawtucket, RI 02860