A breath test refusal on a repeat DUI in Rhode Island is not the same as a first refusal. A first refusal is a civil offense. But if you have a prior violation within 10 years, a second refusal of a breath or urine test is a misdemeanor under R.I. Gen. Laws § 31-27-2.1, with up to 6 months in jail, a fine of $600 to $1,000, and a 1 to 2 year suspension. A third within 10 years carries up to 1 year, a fine of $800 to $1,000, and a 2 to 5 year suspension. Those penalties sit next to the repeat DUI case itself. This guide explains how the refusal case and the repeat DUI case work on their separate tracks.
Refused a breath test on a second or third DUI? Call Chad F Bank at 401-573-2265 before your Traffic Tribunal date.
The Short Answer: Refusal Is a Choice With Its Own Penalties
Every Rhode Island driver is deemed to have consented to a chemical test under § 31-27-2.1(a). You can still refuse, and if you do, no test is given. But the refusal starts its own case at the Rhode Island Traffic Tribunal, separate from the DUI. There is no DMV administrative suspension at the time of arrest. Instead, at the first Traffic Tribunal appearance, the magistrate reviews the police reports and, if the requirements are met, orders your license suspended right away, subject to the hardship provisions in § 31-27-2.8.
So on a repeat DUI, you can end up with two cases: a refusal case at the Traffic Tribunal or District Court, and a second or third offense DUI in criminal court.
Refusal Penalties by Offense Number
The refusal penalties in § 31-27-2.1(c) for a breath or urine test refusal are:
| Refusal | Classification | Jail | Fine | Community service | License suspension |
|---|---|---|---|---|---|
| First | Civil | None | $200 to $500 | 10 to 60 hours | 6 months to 1 year |
| Second within 10 years | Misdemeanor | Up to 6 months | $600 to $1,000 | 60 to 100 hours | 1 to 2 years |
| Third or later within 10 years | Misdemeanor | Up to 1 year | $800 to $1,000 | At least 100 hours | 2 to 5 years |
Every refusal also carries a $500 highway safety assessment and a $200 Department of Health chemical testing assessment. Treatment or a DWI course is required, and on a second or third refusal the judge must order an ignition interlock or blood and urine testing. None of these penalties can be suspended under § 31-27-2.1(c)(9).
A refusal of a blood test is treated differently. A second or third blood test refusal is a civil offense, not a crime, though the fines and suspension still rise.
How a Prior DUI Interacts With a New Refusal
This is the part people miss. For suspension purposes, § 31-27-2.1(c)(6) says a prior violation includes any charge brought and sustained under the refusal statute or under the DUI statute, § 31-27-2. So a prior DUI can lengthen the suspension on a new refusal, and a prior refusal can lengthen the suspension on a new DUI under § 31-27-2(d)(5)(i).
The implied consent notice police read to you says the same thing in plain terms. If you have had one or more previous offenses within the past 10 years, refusing a breath or urine test can bring criminal penalties. If you were not given that notice, the refusal case has a problem, because the magistrate has to find that you were informed of the penalties.
PBT, Chemical Breath Test, and Field Sobriety Tests
The type of test matters, because each request carries different rules.
| Test or request | What it is | What refusing means |
|---|---|---|
| Preliminary breath test (PBT) | Roadside handheld test used to decide whether there is probable cause to arrest | Handled separately from the chemical test refusal statute |
| Chemical breath test | Test at the station under the implied consent law, after arrest | Triggers the refusal case under § 31-27-2.1 |
| Field sobriety tests | Physical tests during the DUI investigation | Not a chemical test; the officer may still arrest based on other observations |
A lawyer should identify exactly which test was requested, when, and what you were told before evaluating the refusal.
Why a Refusal Does Not End the DUI Case
The state can prove a DUI without a chemical test. Under § 31-27-2(b)(1), proof can rest on other admissible evidence, including evidence that the driver was impaired to a degree that made them unable to drive safely. Officers build that case from the driving, the stop, their observations, and field sobriety tests.
There is an important limit, though. Under § 31-27-2(c)(1), evidence that you refused the test is not admissible at the DUI trial unless you choose to testify. The jury or judge deciding the DUI usually never hears about the refusal. That is why a refusal can change the evidence picture in the criminal case even as it creates a separate penalty.
Does a Second DUI Make a Refusal Worse?
Yes, in two ways. First, the refusal itself moves up a tier if there is a prior violation within 10 years, as shown in the table above. Second, the DUI side already carries mandatory jail. A second DUI within 10 years means 10 days to 1 year, a $400 fine, and a 1 to 2 year suspension. A third within 10 years is a felony with 1 to 3 years. A refusal does not reduce any of that if the state can prove the DUI another way.
The refusal and the DUI should be reviewed together, because a decision in one case can affect the other. For the DUI tiers, see our guides to second offense DUI in Rhode Island and third offense DUI in Rhode Island, and the full chart of DUI penalties in Rhode Island.
The Refusal Hearing
Under § 31-27-2.1(d), the judge sustains a refusal only after finding that the officer had reasonable grounds to believe you were driving under the influence, that you refused while under arrest, that you were informed of your rights under § 31-27-3, and that you were informed of the penalties in the implied consent notice. You can request a hearing within 15 days of the suspension notice. Each of those findings is a place the defense can push.
Before a license is reinstated on a third or later refusal within a 3-year period, the statute also requires a hearing where the judge reviews your driving record, employment, and family background.
If You Already Refused, What Should You Do?
- Write down what happened while your memory is fresh, including which test was requested and exactly what you were told.
- Keep every notice, citation, and summons.
- Do not miss the Traffic Tribunal date or the criminal court date.
- Do not drive if your license has been suspended.
- Do not discuss the stop with anyone but your lawyer.
- Call a lawyer who handles both refusal and repeat DUI cases.
How a Lawyer Reviews a Repeat DUI Refusal Case
A lawyer looks at the reason for the stop and whether there was probable cause. Rhode Island does not allow DUI checkpoints, under State v. Pimental (1989), so each stop needs its own reason. The review identifies whether you were asked for a PBT, a chemical breath test, or field tests, how the refusal was documented, whether the implied consent notice and your rights were given, and whether the state can prove DUI without a chemical result.
For a repeat case, the review also covers the prior record. Is each prior inside the 10-year window? Is it a sustained violation? Can the state prove it? The goal is to separate the refusal issue from the DUI issue and find the strongest defense in each. For more, see our breathalyzer refusal page and our page on repeat Rhode Island DUI defense.
Talk to a Rhode Island DUI Lawyer
If you are facing a repeat DUI and a breath test refusal, you do not have to sort out the two cases alone. Chad F Bank is a RI criminal defense lawyer and Rhode Island DUI attorney who handles refusal and DUI cases in Providence and across Rhode Island. Call 401-573-2265 to go over both.
Related Reading
- Breathalyzer Refusal in Rhode Island
- Repeat Rhode Island DUI Defense
- Second DUI Arrest in Rhode Island: What to Do Next
- Rhode Island DUI License Suspension: Length and Next Steps
- Rhode Island DUI Lookback: Is It 5 or 10 Years?
Frequently Asked Questions
Can you refuse a breath test on a second DUI in Rhode Island?
Yes, but with a prior violation within 10 years, a second refusal of a breath or urine test is a misdemeanor with up to 6 months in jail, a fine of $600 to $1,000, and a 1 to 2 year suspension.
Can Rhode Island prosecute a DUI without a breath test?
Yes. The state can prove a DUI with other evidence, such as driving behavior, observations, and field sobriety tests. A refusal does not guarantee a dismissal.
Can the refusal be used against me at the DUI trial?
Generally no. Under § 31-27-2(c)(1), evidence of a refusal is not admissible at the DUI trial unless you choose to testify. It is handled in the separate refusal case.
Does the DMV suspend my license at the time of arrest?
No. Rhode Island has no DMV administrative suspension at arrest. The suspension comes from the Traffic Tribunal magistrate at your first appearance, and you can request a hearing within 15 days.
Does a prior DUI count toward a refusal suspension?
Yes. For suspension length, a prior violation includes a sustained refusal or a DUI under § 31-27-2. The 10-year window applies to both.
