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To Take The “Preliminary" Breath Test Or Not? That Is The Question!


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4/14/2010
Michael J. Robinson, Associate
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In a recent Superior Court case, (State v. Cote, C.A. No. N3/08-120A (R.I. Super. 2009)) the Newport County Superior Court addressed the issue of what happens when a drunk driving suspect is offered the Preliminary Breath Test at the scene of the arrest, refuses, but subsequently takes the Breathalyzer test back at the station after being taken into the custody. 

Under rules promulgated by the Rhode Island Department of Health and codified by the Rhode Island General Assembly, an officer who suspects that a driver can ask said driver to submit to a hand-held portable breath test device, known as the Preliminary Breath Test.  The purpose of the Preliminary Breath Test is to assist the officer in making the determination about whether or not he has the probable cause necessary to make an arrest.  The results of the Preliminary Breath Test are NOT admissible of proof of intoxication at a trial. 

In the Cote case, the police asked Ms. Cote to take a Preliminary Breath Test at the scene of the stop.  She refused to do so and was subsequently arrested for suspicion of driving under the influence of alcohol.  Back at the police department, the arresting officer asked her to take the Breathalyzer test provided for by RIGL 31-27-2.1. 

Under Rhode Island law, every driver in this state gives his/her implied consent to submit to a chemical breath test at the request of a police officer if the officer reasonably suspects the driver is under the influence.  This implied consent can be withdrawn at anytime and the driver can refuse to take the test.  The language of the statute reads that if the driver refuses to take the test, than “none shall be given”.  Failure to take the test results in civil sanctions, including a loss of driver’s license. 

In Ms. Cote’s matter, even though she refused to take the Preliminary Breath Test at the scene, she agreed to take the Breathalyzer test at the station.  Needless to say she failed and was charged with driving under the influence (DUI). 

Ms. Cote filed a motion to suppress the results of the Breathalyzer test based on the fact that she refused the Preliminary Breath Test at the scene and the “none shall be given” language in the “Refusal” statute.  In granting her motion the Court ruled that the “none shall be given” language extinguished the right of the police to request and/or administer any further tests. 

The Department of the Attorney General initially filed an appeal to the Rhode Island Supreme Court on this issue, but interestingly, it dropped the appeal before the hearing.  My thinking is that the Attorney General feared that the Superior Court’s ruling would be affirmed on appeal, effectively closing the door shut on many, many “Refusal” cases. 

The teaching point of this case is that if a suspected drunk driver refuses to submit to the Preliminary Breath Test at the scene of the arrest, the police may not request the driver to submit to the Breathalyzer at the station or the results of that Breathalyzer test will be suppressed. 

Based on this ruling, it has been my experience that most police departments have stopped asking suspected drunk drivers to take the Preliminary Breath Test. They’ve done so because the penalties for refusing to take the Preliminary Breath Test are relatively small ($85.00 Fine) compared to the penalties for refusing a Breathalyzer (minimum of 6 month loss of license).  Moreover, it is my belief that the Department of the Attorney General will be lobbying the General Assembly to modify the statutory “none shall be given” language.  So, to the extent that this “loophole” exists, I suspect it will be closed shortly.



Category: DUI & Breathalyzer Refusal


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