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Breathalyzer Refusal Defense in Newport RI
Attorney Macktaz bases his practice in Newport, Rhode Island. Being a local gives him a special outlook on the relationship between the law and alcohol in the area. Attorney Macktaz’s first-hand knowledge of Newport and it’s law enforcement’s policies and procedures gives him an in-depth understanding allowing for an effective and aggressive defense for individuals charged with DUI (Driving Under the Influence) and other Newport RI drunk driving offenses including breathalyzer refusal.
Attorney Macktaz has substantial experience with DUIs from his days as a prosecutor. From 1993-1997, he was Rhode Island Special Assistant Attorney General, and he has used the experience from that post to successfully defend hundreds of clients accused of drunk driving offenses.
Before steering his practice to focus on being a Drunk Driving Defense Lawyer, Attorney Macktaz gave lectures to Rhode Island police academy cadets as an Attorney General Prosecutor. The focus of these lectures was how to conduct proper drunk driving investigations and prosecutions. This unique experience has provided Attorney Macktaz a trove of knowledge and insight most defense attorneys lack. He is a qualified and experienced DUI attorney, and letting him handle your case sooner than later can affect the outcome tremendously.
You need a Newport DUI Attorney who knows the ins and outs of Rhode Island criminal laws concerning drunk driving (crimes listed as DWI, DUI, driving under the influence, drunk driving, and driving while intoxicated). Rhode Island Defense Attorney S. Joshua Macktaz aggressively protects each of his client’s rights in criminal and DUI cases, and he does this every day in courts throughout Rhode Island.
Attorney Macktaz is always available to talk about your case. Rhode Island Drunk Driving Lawyer Joshua Macktaz practices in every town in Rhode Island, so he can help you wherever you are in the state.
If you have been charged with a DUI in Newport, Rhode Island, call Newport RI DUI Attorney S. Joshua Macktaz, Esq. today at 401-285-2996.
Breathalyzer Refusal Overview
One of the most common charges faced in our criminal justice system is driving under the influence of alcohol. These crimes are also known as DUI or DWI and drunk driving. There are separate penalties for refusing to take the chemical test or breathalyzer after being taken in for a Rhode Island DUI. These include a minimum six-month loss of your driver’s license, fines, community service, DUI classes, and other sanctions.
First Offense Breathalyzer Test Refusal
- Receive a fine of $200 to $500
- Do Community Service for 10 to 60 hours
- Have your driver’s license suspended for six months to one year
- Highway Safety Assessment, a $500 fee, via the Community College of Rhode Island (CCRI)
- Possible enrollment in a driving school and/or a program for alcohol treatment
- Pay a $200 fee to support chemical testing programs by the DOH
Rhode Island Breathalyzer Refusal – Why or Why not?
Rhode Island takes a hardline stance towards drunken driving because of the serious and deadly outcome of alcohol related accidents. The state’s strict laws and punishments are based on violator’s age and their blood alcohol content (BAC) levels. It’s also a good idea to remember:
- Any DWI which results in the death of someone is treated as a felony.
- Anyone under twenty-one years old with an open container in his or her vehicle may face a 30 day suspension if caught by law enforcement.
- Any driver behind the wheel of a vehicle gives “Implied Consent”, which means that the state has permission to administer a breathalyzer.
- The threshold for DWI charges is very low for younger drivers. Drivers under age twenty-one can be charged with DWI for a BAC of .02% or higher.
- Rhode Island defines driving while intoxicated (DWI) as any driver twenty-one or older with a BAC of .08% or higher.
- A full description of Rhode Island’s DWI policies is located in Title 31, Chapter 27 of the State of Rhode Island General Laws.
Confronted with the possibility of a Rhode Island DUI arrest, should you refuse a breathalyzer test when you are stopped by law enforcement? You will not automatically lose your license when you take the test. In the event that you fail the test, you will be criminally charged, but you keep your license until a conviction is reached. You should balance the choices of having a serious crime on your record and having the ability to drive. This choice is entirely up to you and your circumstances. If you feel having an alcohol related driving offense on your criminal record will not affect you, or that losing your license for six to twelve months automatically will negatively affect your life, then take the test.
DUI charges have a high margin of victory, as the state must prove beyond reasonable doubt that a driver was in fact intoxicated to the level that he or she could not operate a motor vehicle in the state of Rhode Island. The court must also prove a driver was properly read his or her rights and that the enforcement officer met all legal requirements and procedures during the arrest. Losing a criminal DUI case, unfortunately, means you will have a conviction on your record which could affect employment opportunities, and it may even lose you your job. Second and third DUI convictions come with mandatory jail time in Rhode Island as well.
The penalties for a second or third DUI breathalyzer refusal include:
Second Offense Breathalyzer Test Refusal within Five Years
- Receive fines of $600 to $1000
- License is suspended 1-2 years
- Must perform 60-100 hours of community service
- Alcohol or drug treatment is mandatory
- Levied a Highway Safety Assessment, a $500 fee, for the Community College of Rhode Island (CCRI) and possible enrollment in a driving school and/or an alcohol treatment program
- Pay a $200 fee to support the DOH’s chemical testing programs
Third Offense Breathalyzer Test Refusal within Five Years
- Fines of $800-$1,000
- Up to one year in jail
- The license will be suspended for 2-5 years
- Perform a mandatory 100 hours of community service
- Go to alcohol or drug treatment
- There will be a hearing to determine whether license may be reinstated
- Face a Highway Safety Assessment ($500 fee) conducted by the Community College of Rhode Island (CCRI) and possible enrollment in a driving school and/or an alcohol treatment program
- Pay a $200 fee to support the DOH’s chemical testing programs
Defending your Newport Breathalyzer Refusal Charges
Attorney Macktaz closely understands the working parts of a Breathalyzer Refusal case in the criminal courts of Rhode Island.
These are things you should know about refusing a breath test in RI, brought to you by a former Special Assistant Attorney General:
- Refusing a Breathalyzer test means your license and ability to drive in RI has suspended automatically at your arraignment.
- Suspension happens prior to any hearing.
- Rhode Island needs to only prove that law enforcement had probable cause to arrest you. They only need a reasonable suspicion to believe that a driver was operating a motor vehicle under the influence.
- The court must confirm that you were properly read your rights. It must also prove that you did, without a doubt, refuse to take the breath test.
- You will most likely still be charged with a criminal DUI based on the officer’s report and observations, even if you refuse the test.
Understanding these facts provides the opportunity to defend a case using one or many types of defenses.
Challenging the Constitutionality of the Stop
The Police cannot stop a driver unless he has reasonable suspicion to believe a crime has been or is about to be, committed. The police may state an individual for any traffic violation.
- Roadblocks have been held unconstitutional in Rhode Island.
- A car cannot be stopped based on an anonymous tip or 911 call.
Challenging the Admissibility of the Breath Test Results
- The police must have probable cause to request you submit to a chemical test for purposes of a criminal charge.
- The police must advise you of your right to have an independent chemical test performed by a physician or hospital of your choosing and afforded a reasonable chance to exercise this right.
- The police must observe you for at least 15 minutes prior to you taking the breath test. *See article on “Mouth Alcohol” in the article section of this site.
- A true copy of the breath test results must be mailed to you within 72 hours of the test.
- The breath test machine must be in full compliance with the regulations set out by the Department of Health.
- The breath test operator must be certified within 365 days of the test.
- Two complete samples must be given within a 30 minute period.
- The two samples must be within a .05% agreement of each other.
Independent Witnesses
It is not just the prosecution who is allowed to call witnesses at trial. If you were in direct contact with one or more people shortly prior to your arrest, you may call them to testify to your lack of intoxication. It may be your passenger, the waitress at the restraint you ate, the bartender where you just left or even the family who picked you up from jail. Any lay witness, meaning they do not have to be an expert, can testify to their opinion regarding your sobriety.
Miranda Warnings not Given
Any interrogation that takes place while in police custody must have been preceded by a Miranda warning. If not given, any statements made as a result of questioning would be excluded from the trial. This is particularly important when incriminating statements were made by you after your arrest.
Failure to Conduct Observational Period
Rhode Island law requires the police to observe a suspect for at least 15 minutes prior to administering a breath test. This is because any mouth alcohol, which could be the result of recent alcohol consumption, hiccuping, burping or vomiting, would cause a false elevated reading.>/p>
Expert Witnesses
The defendant has an absolute right to present expert witnesses in his own defense. DUI law is extremely complex and it may be necessary to call an expert to testify to such issues as; toxicology, chemistry, biology, breath testing instrumentation and/or functioning.
Medical and Health Problems
Pre-existing medical conditions related to your brain, legs, neck, back and vision can eliminate the validity of field sobriety testing results. Acid reflux, diabetes, certain prescription medicines can have a dramatic effect on your breath alcohol testing results.
Retrograde Extrapolation
When you consume alcohol, it takes time for it to absorb into your system. Essentially, you could have a number of beers or alcohol and not feel the effects to sometime later after you stop drinking. When a breath test is given you at the police station, it could very well be up to an hour after you were last driving. The breath test will give a result for what your BAC at the time of the test, but what about your BAC an hour prior when you were actually driving? Retrograde extrapolation is the formula for determining BAC at a prior time. This may very well lead to your BAC being below the legal limit at the time you were actually driving, even though it was above the limit at the time of the test.
Interfering Substances
The breath testing machine works by measuring the amount of alcohol in your breath. If you have been exposed to certain fumes, substances and/or particles, a false reading could very well take place. A common example of this is a painter who is exposed to, and has been inhaling, certain paint fumes throughout the day. Other substances such as cough drops, Listerine, or ethanol based products could have an impact as well.
Contact Newport Breathalyzer Refusal Lawyer S. Joshua Macktaz, Esq/ today at 401-285-2996 for a free in-depth consultation to review your charges, possible penalties, and much more.
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