If you've been pulled over in Rhode Island and asked to blow into a small handheld device at the side of the road, you've been asked to take a preliminary breath test (PBT). What you do next matters - but probably not in the way you've heard.
Most Rhode Island drivers confuse two completely different breath tests, and that confusion costs them. Refusing the roadside PBT is governed by R.I. Gen. Laws § 31-27-2.3 and is just a civil infraction - about the equivalent of a traffic ticket. Refusing the chemical breath test at the police station after arrest is governed by R.I. Gen. Laws § 31-27-2.1 and is far more serious - license suspension, mandatory fines, and potential jail time.
The system depends on you not knowing the difference. This page tells you the difference.
If you've already refused or been arrested, call 401-573-BANK (2265) for a free 24/7 consultation.
What Is a Preliminary Breath Test in Rhode Island?
A preliminary breath test (PBT) is a small handheld breath analysis device used by police at the side of the road, before any arrest. Under R.I. Gen. Laws § 31-27-2.3, an officer may require a PBT when they have "reason to believe" you've been driving under the influence of alcohol.
The test is administered using a device approved by the Rhode Island Department of Health. The result gives the officer a rough estimate of your blood alcohol concentration that they use to decide whether to arrest you.
Critically, the PBT is NOT the evidentiary test. The evidentiary breathalyzer happens later, at the police station, under R.I. Gen. Laws § 31-27-2.1.
When Can an Officer Require a PBT?
The standard is "reason to believe" - which is a lower bar than "probable cause." Common bases an officer cites for requesting a PBT include:
- Erratic driving observed before the stop
- Smell of alcohol on your breath or in the vehicle
- Bloodshot, watery, or glassy eyes
- Slurred speech
- Difficulty producing license and registration
- Admission of recent drinking
- Open containers in the vehicle
- Failed performance on Standardized Field Sobriety Tests (SFSTs)
The PBT is typically the LAST step before the officer makes the arrest decision. If you've already failed the field sobriety tests, the PBT is often the trigger that turns the stop into an arrest.
What Happens If You Refuse a PBT in Rhode Island?
Under R.I. Gen. Laws § 31-27-2.3(b), refusing a PBT is an infraction - not a misdemeanor, not a felony, not the same as refusing the chemical test at the station.
The penalty is set by R.I. Gen. Laws § 31-41.1-4 (the general traffic infraction statute) - a small fine, typically in the $85 range, with no jail time, no license suspension, and no criminal record.
You can also raise an affirmative defense if a medical condition prevented you from taking the test (asthma, certain dental issues, GERD-related conditions, recent dental surgery, etc.).
That's it. That's the entire penalty for refusing the roadside PBT.
The Critical Distinction: PBT Refusal vs. Chemical Test Refusal
This is the single most important section of this entire page. These two refusals are governed by different statutes with vastly different consequences:
| PBT Refusal (§ 31-27-2.3) | Chemical Test Refusal (§ 31-27-2.1) | |
|---|---|---|
| Where it happens | Roadside, before arrest | Police station, after arrest |
| Device | Small handheld breath analyzer | Calibrated evidentiary breathalyzer |
| Legal classification | Infraction (civil) | Civil violation w/ severe penalties |
| First refusal penalty | ~$85 fine | License suspension 6+ months, $200-500 fine, $200 highway assessment, mandatory community service |
| Second refusal (5 yrs) | Same small fine | License suspension 1-2 years, $300-1,000 fine, mandatory jail option |
| Third refusal (5 yrs) | Same small fine | License suspension 2-5 years, mandatory jail, felony exposure |
| Admissible at trial? | NO (cannot be used as evidence of guilt) | YES (refusal can be admitted) |
| Affects driving privileges? | No | Yes - immediate suspension |
| Affects criminal case? | No | Yes - used as consciousness of guilt |
The PBT refusal is a parking ticket. The chemical test refusal can end your ability to drive for years.
PBT Result Is NOT Admissible at Trial
Here's the secret of § 31-27-2.3 that even some defense lawyers don't emphasize enough: the PBT result cannot be used as evidence of your guilt at trial.
The statute is explicit: PBT results "may not be used as evidence in any administrative or court proceeding involving driving while intoxicated or refusing to take a breathalyzer test, except as evidence of probable cause in making the initial arrest."
Translation: even if you blew over .08 on the PBT, that number cannot be shown to a jury or judge as proof you were drunk. It can only be used to justify the arrest.
The evidence at trial is the chemical test from the police station - or, if you refused the chemical test, the prosecution proceeds without breath evidence and relies on observations, dash cam, body cam, and field sobriety test performance.
This is why the PBT vs. chemical test distinction matters so much. The PBT supports the arrest. The chemical test supports the conviction.
Medical Condition Defense
R.I. Gen. Laws § 31-27-2.3(b) carves out an explicit affirmative defense: if your medical condition precluded the giving of any such test, you have a defense to the refusal infraction.
Medical conditions that can prevent accurate PBT performance include:
- Asthma or COPD - limits the lung capacity needed to deliver a sustained breath sample
- Severe acid reflux (GERD) - can produce mouth alcohol that contaminates the reading
- Recent dental surgery - bleeding gums or oral wounds can affect results
- Diabetic ketoacidosis - can produce false positives
- Mouth injuries from the stop itself - sometimes relevant
- Certain inhaler use within minutes of the test - can contaminate results
If you have a documented medical condition that affected your ability to take the PBT, raise it with your defense lawyer. The infraction is small, but a clean record is still valuable.
Chad's Commentary
I've been defending Rhode Island DUI cases for over twenty years, and the PBT confusion is the one thing I see costs drivers more than any other procedural misunderstanding. Here's what I tell my clients:
Should you refuse the PBT? That's not a question I can answer in a generic article - it depends on the totality of your circumstances. But understand what you're doing if you refuse. You're agreeing to an $85 infraction. You are NOT agreeing to lose your license for six months. The chemical test at the station - that's the one with the license consequences.
If you refuse the PBT, the officer will likely arrest you anyway based on observed behavior, field sobriety tests, and other indicators. So refusing the PBT often delays the arrest by minutes, not hours. The decision tree usually comes down to: do you want them to have rough roadside numbers in their probable cause file, or just observations?
Either way, the chemical test at the station is the one to think hard about. By the time you get to the station you should already be calling a lawyer. Call me at 401-573-BANK (2265) before that test happens if at all possible. Decisions made in the next ten minutes can change the next two years of your driving life.
One more thing: if the officer told you that refusing the PBT would cost you your license - that was either a misstatement or a lie. PBT refusal does not affect your license. Chemical test refusal does. They are different statutes.
Frequently Asked Questions
What is a preliminary breath test (PBT) in Rhode Island?
A preliminary breath test (PBT) is a small handheld breath analysis device used at the side of the road by police, before arrest, to estimate a driver's blood alcohol content. It is governed by R.I. Gen. Laws § 31-27-2.3 and is used solely to help the officer decide whether to make a DUI arrest. The PBT is not the same as the evidentiary breathalyzer test administered at the police station after arrest.
What is the penalty for refusing a PBT in Rhode Island?
Refusing a Rhode Island preliminary breath test is a civil infraction under R.I. Gen. Laws § 31-27-2.3(b), with the penalty set by R.I. Gen. Laws § 31-41.1-4 - typically a small fine of approximately $85 with no jail time, no license suspension, and no criminal record.
Is PBT refusal the same as chemical test refusal in Rhode Island?
No. They are completely different statutes with vastly different consequences. PBT refusal under § 31-27-2.3 is a civil infraction with an ~$85 fine. Chemical test refusal under § 31-27-2.1 (administered at the police station after arrest) carries license suspension of 6 months to 5+ years, fines of $200 to $1,000+, mandatory community service, and potential jail time for repeat refusals.
Can a PBT result be used against me in court?
No. R.I. Gen. Laws § 31-27-2.3(a) explicitly prohibits the use of preliminary breath test results as evidence of guilt in any DUI proceeding. PBT results may only be used as evidence of probable cause to support the initial arrest. The evidentiary chemical test at the police station is what gets admitted at trial.
When can a Rhode Island officer require a PBT?
An officer may require a preliminary breath test under R.I. Gen. Laws § 31-27-2.3(a) when they have "reason to believe" the driver is operating a vehicle under the influence of alcohol. This is a lower threshold than probable cause and can be based on erratic driving, smell of alcohol, slurred speech, bloodshot eyes, or failed field sobriety tests.
What if I have a medical condition that prevents me from taking a PBT?
R.I. Gen. Laws § 31-27-2.3(b) provides an explicit affirmative defense to a PBT refusal charge if a medical condition precluded the giving of the test. Common qualifying conditions include asthma, COPD, severe acid reflux (GERD), recent dental surgery, diabetic ketoacidosis, and certain mouth injuries. Document the condition and discuss it with your defense lawyer.
Will refusing a PBT cause me to be arrested anyway?
In most cases, yes. By the time an officer asks for a PBT, they already have substantial reason to believe you may be impaired (failed field sobriety tests, observed behavior, smell of alcohol). Refusing the PBT typically removes one piece of supporting evidence but does not prevent the arrest itself. The officer can arrest based on other indicators.
Will refusing a PBT affect my Rhode Island driver's license?
No. PBT refusal under § 31-27-2.3 is a traffic infraction with no license consequences. Driver's license suspension is a consequence of chemical test refusal under § 31-27-2.1 (the post-arrest test at the station) - not the roadside PBT.
If You've Been Arrested for DUI in Rhode Island
The decisions you make in the first few hours of a Rhode Island DUI arrest will affect the next several years of your life. Whether you refused the PBT, took the PBT, refused the chemical test, took the chemical test, or are still at the station weighing what to do - call a defense lawyer immediately.
I've handled thousands of Rhode Island DUI cases over twenty-plus years and I take calls 24 hours a day, 7 days a week.
Call 401-573-BANK (2265) right now.
Visit chadbanklaw.com for more about my practice and other criminal defense services across Rhode Island.
Author: Chad F. Bank, Rhode Island criminal defense lawyer. Practice address: 127 Dorrance Street, Providence, RI 02903. Direct line: 401-573-BANK (2265).
This page is for general informational purposes and does not constitute legal advice. If you've been charged with DUI or chemical test refusal, talk to a lawyer about your specific situation.