--- title: "Is Refusing a Breathalyzer in Rhode Island a Crime? It Depends on Which Refusal and How Many" description: "Most Rhode Island websites still say refusing a breathalyzer is never a crime. Under current R.I. Gen. Laws § 31-27-2.1, a second or third refusal within ten years is a misdemeanor. Chad Bank walks through what changed in 2021, the blood-test carve-out, and where the felony actually comes from." url: https://riduilaws.com/refusing-a-breathalyzer-in-rhode-island-crime/ date: 2026-09-24 modified: 2026-09-25 author: "RI DUI Laws" image: https://riduilaws.com/wp-content/uploads/2026/09/refusing-a-breathalyzer-in-rhode-island-crime-card.webp categories: ["Law Changes", "Statute Analysis"] tags: ["31-27-2.1", "chemical test refusal", "implied consent", "P.L. 2021 ch. 170"] type: post lang: en --- # Is Refusing a Breathalyzer in Rhode Island a Crime? It Depends on Which Refusal and How Many Ask ten Rhode Island lawyers' websites whether refusing a breathalyzer in Rhode Island is a crime and nine of them will tell you no - it's a civil violation, you lose your license for six months, that's it. That was true once. It hasn't been true for a while, and the gap between what the websites say and what R.I. Gen. Laws § 31-27-2.1 actually says is now wide enough to put someone in jail. **Current through P.L. 2024, ch. 217 and ch. 218, effective July 1, 2025.** I'm Chad F. Bank. I've defended DUI and refusal cases in Rhode Island for over twenty years, and I rewrote my own refusal page this month because it still carried the old answer. If my page was out of date, I promise you the one you read before mine is too. Here is the current law, in the same format I used for the [2014-to-2025 statute diff](https://riduilaws.com/ri-dui-law-changes-2021-2025/): what it used to say, what it says now, and who the change helps. If you'd rather just call: **401-573-BANK (2265)**. Available 24/7. --- ## The Short Answer Refusing a breathalyzer in Rhode Island is: - **A civil violation** the first time. - **A misdemeanor** the second and third time within ten years - if the test you refused was breath or urine. - **Never a crime** if the test you refused was a blood draw, no matter how many priors you have. - **Never a felony** on its own. The felony in a repeat case comes from the DUI charge, not the refusal. Three of those four sentences contradict most of what's published about Rhode Island refusal law. Let's go through each one. --- ## 1. The Lookback: Five Years Became Ten ### What the law used to say Before 2021, § 31-27-2.1(c) counted prior refusals and prior DUI convictions inside a five-year window. A refusal from six years ago was gone. You were a first offender again. ### What the law says now P.L. 2021, ch. 170 and ch. 171 rewrote the section to read "within a ten-year (10) period" at every tier. And under subsection (c)(6), "a prior violation shall constitute any charge brought and sustained under the provisions of this section or § 31-27-2" - so a prior *DUI conviction* counts as a prior for refusal purposes, not just a prior refusal. ### Commentary from Chad This is the same doubling that hit the DUI statute in the same bill, and it does the same damage: it drags people who thought they were first offenders into the repeat tiers. A DUI plea from 2018 that everyone told you would "fall off" in 2023 now counts against you until 2028. If you refuse the test tonight, that eight-year-old plea makes tonight your second violation - and a second violation is where the criminal exposure starts. ### Who benefits **Prosecution.** Roughly doubles the pool of drivers who can be charged as repeat refusers. --- ## 2. Second and Third Refusals Are Misdemeanors ### What the law used to say Refusal was treated as an administrative matter with escalating civil penalties. The "refusal is not a crime" line was accurate. ### What the law says now § 31-27-2.1(c)(2): "Every person convicted of a second violation within a ten-year (10) period, except with respect to cases of refusal to submit to a blood test, shall be guilty of a misdemeanor; shall be imprisoned for not more than six (6) months; shall pay a fine in the amount of six hundred dollars ($600) to one thousand dollars ($1,000); perform sixty (60) to one hundred (100) hours of public community restitution; and the person's driving license in this state shall be suspended for a period of one year to two (2) years." § 31-27-2.1(c)(3) does the same for a third or subsequent violation: misdemeanor, up to one year in jail, $800 to $1,000 fine, at least 100 hours, two-to-five-year suspension. Ignition interlock is mandatory at both tiers - the statute says "shall prohibit," not "may." ### Commentary from Chad Read the implied consent notice the officer is required to recite under (c)(10). It says, in the statute's own words, that if you have a prior within ten years "your refusal to submit to a chemical test of breath or urine at this time can have criminal penalties, including incarceration up to six (6) months for a second offense and up to one year for a third or subsequent offense." The legislature put the warning in the script because the consequence is real. What this means in practice: the old calculus - "refuse, eat the six-month suspension, make the state prove DUI without a number" - only works for a true first offender. For anyone with a prior in the last decade, refusing the breath test doesn't avoid a criminal case. It creates a second one, with its own jail exposure, that the state can prove by showing you were asked and said no. ### Who benefits **Prosecution.** Turns a civil sanction into a criminal charge for every repeat refuser. --- ## 3. The Blood-Test Carve-Out ### What the law used to say No distinction between refusing breath, blood, or urine. ### What the law says now Every criminal tier in (c)(2) and (c)(3) is qualified with "except with respect to cases of refusal to submit to a blood test." Blood-test refusals get their own civil tiers under (c)(4) and (c)(5) - same fines, same community restitution, a flat two-year suspension on a second and two to five years on a third, mandatory interlock - but the statute says in both subsections: "Such a violation with respect to refusal to submit to a chemical test of blood shall be a civil offense." ### Commentary from Chad This is the legislature's answer to *Birchfield v. North Dakota*, the 2016 Supreme Court decision that said states can criminalize refusing a breath test but not refusing a warrantless blood draw. Rhode Island split the statute down that line. It's one of the few places in the refusal statute that runs in the defendant's favor, and it creates a real difference depending on which test the officer asked for. If the request was for blood and you declined, you are not looking at jail for the refusal, whatever your record looks like. There's a second piece most people don't know exists: § 31-27-2.1(b) lets a driver who cannot give blood for religious or medical reasons file an affidavit with the DMV in advance. With that notation on your license, officers may only ask for breath, saliva, or urine. ### Who benefits **Defense.** Narrow, but real. --- ## 4. It Is Not a Felony - and Where the Felony Actually Comes From ### What the websites say A common line, including on my own page until this month: a third refusal within five years "is treated as a third-offense DUI - felony exposure." ### What the law says Nothing in § 31-27-2.1 makes a refusal a felony. The top of the refusal statute is a misdemeanor with up to one year. The felony is in § 31-27-2(d)(3) - a third DUI conviction within ten years - and it attaches to the *DUI* charge, not the refusal. ### Commentary from Chad The confusion is understandable, because in the real world these charges travel together. A driver with two priors who refuses tonight is facing a felony DUI in District Court *and* a misdemeanor refusal at the Tribunal. From the client's chair that feels like "the refusal is a felony." It isn't, and the distinction matters for what can be negotiated. The refusal count and the DUI count are separate cases with separate burdens - see [Rhode Island DUI - DMV vs court](https://riduilaws.com/ri-dui-dmv-vs-court/) - and a result on one doesn't bind the other. ### Who benefits **Neutral.** This is a correction to the commentary, not a change in the law. --- ## The Money Nobody Mentions Two assessments sit on top of every refusal tier, and subsection (c)(9) says none of them can be suspended: - **$500 highway safety assessment** - (c)(7), collected before any other fine. - **$200 Department of Health chemical testing assessment** - (c)(8). So the real floor on a first refusal isn't the $200 fine most sites quote. It's $200 plus $700 in assessments plus the license reinstatement fee, before you've paid for the DWI course or a single month of interlock. The full tiered breakdown is on the [Rhode Island chemical test refusal](https://riduilaws.com/ri-chemical-test-refusal/) page. --- ## What This Means If You Are Deciding Right Now If you are at a Rhode Island police station reading this on your phone, the decision in front of you depends on one fact more than any other: **do you have a DUI or a refusal anywhere in the last ten years?** If the answer is no, refusal is a civil matter and the calculation is the one I lay out on the refusal page - a license-for-evidence trade that is sometimes worth making and sometimes isn't. If the answer is yes, refusing a breath or urine test is a misdemeanor charge with jail exposure. That changes the math completely, and it's a decision you should be making with a lawyer on the phone, not from a website. The officer has to give you a reasonable opportunity to make that call. Use it. **401-573-BANK (2265).** --- ## Frequently Asked Questions ### Is refusing a breathalyzer in Rhode Island a crime? A first refusal is a civil violation. A second or third refusal of a breath or urine test within ten years is a misdemeanor under R.I. Gen. Laws § 31-27-2.1(c)(2) and (c)(3), with up to six months or one year in jail respectively. Refusing a blood test is civil at every tier. ### How long does a prior DUI count against a refusal in Rhode Island? Ten years. P.L. 2021, ch. 170 and ch. 171 doubled the lookback from five years to ten, and § 31-27-2.1(c)(6) counts a prior DUI conviction under § 31-27-2 as a prior violation for refusal sentencing. ### Can I go to jail for refusing a breath test in Rhode Island? Yes, if it is your second or third violation within ten years and the refused test was breath or urine. The statute allows up to six months for a second violation and up to one year for a third. A first refusal carries no jail. ### Is refusing a blood test treated differently from refusing a breath test in Rhode Island? Yes. Under § 31-27-2.1(c)(4) and (c)(5), repeat refusals of a blood test are civil offenses with no jail, even though the fines, suspension, and ignition interlock requirements still escalate. ### Is a third breathalyzer refusal a felony in Rhode Island? No. The refusal statute tops out as a misdemeanor. Felony exposure in a repeat case comes from a third DUI conviction within ten years under § 31-27-2(d)(3), which is a separate charge from the refusal. ### What are the mandatory fees for a refusal in Rhode Island? Every refusal carries a $500 highway safety assessment and a $200 Department of Health chemical testing assessment on top of the fine, plus a license reinstatement fee. Under § 31-27-2.1(c)(9), none of the fines, assessments, or suspensions can be suspended by the court. --- ## About This Analysis This post analyzes R.I. Gen. Laws § 31-27-2.1 as currently published by the Rhode Island General Assembly, current through P.L. 2024, ch. 217 and ch. 218 (effective July 1, 2025). Statutory quotations are verbatim from the official text. Author: **Chad F. Bank**, Rhode Island criminal defense lawyer. Practice address: 127 Dorrance Street, Providence, RI 02903. Direct line: 401-573-BANK (2265). *This analysis is provided for general informational purposes and does not constitute legal advice for any specific case. If you've been charged, talk to a lawyer about your specific situation.*