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Can I beat a RI DUI charge if I failed a breath test?

Posted by Matthew Marin | Jul 17, 2017 | 0 Comments

We are frequently asked by potential clients if it is possible to beat a Rhode Island DUI charge if you have submitted to and failed a breath test. Like most questions in the law, the answer is not always a straightforward yes or no. On the positive side, it is absolutely possible to beat a RI DUI case after failing a chemical breath test. It is by no means automatic that you will lose your case and be convicted just because you took a chemical breath test and your readings were over the legal limit. On the other hand, it is also not a sure thing that your case can or will be beaten. 

A failed breath test strengthens the Prosecution's criminal DUI charge as it provides, if admissible, solid and concrete evidence regarding the motorist's blood alcohol content at the time they were operating the vehicle. This is called “per se” evidence of drunk driving. This concrete evidence of impaired operation is the prosecutor's easiest way to prove a DUI case.

That being said, before the Prosecutor can introduce this breath test evidence of the motorist's blood alcohol content to the Judge or the jury he must satisfy the statutory requirements. The DUI law in Rhode Island requires the prosecutor show that the Police complied with nearly a dozen procedural requirements before the evidence of the failed breath test can be given to the Judge or jury. A failure to comply with any one of these requirements can lead to the exclusion of the evidence from trial. Some of the statutory requirements for failed breath tests include: 

  • The Police had a lawful basis for stopping or coming into contact with the motorist;
  • The Police informed the motorist of the proper rights when he was arrested;
  • The Police informed the motorist of the proper rights prior to the breath test;
  • The Police continually observed the motorist for the 15 minutes prior to the administration of the breath test;
  • The Police used a new mouthpiece for each phase of the breath test;
  • The motorist's consent wasn't influenced by improper remarks by the Police;
  • The breath test results are within the Department of Health regulated margin of error;
  • A copy of the breath test results were mailed to the motorist within 72 hours of taking the test;
  • The breath test machine was certified by the Department of Health within the prior 30 days;
  • The breath test operator was certified by the Department of Health within the prior 365 days;

 If the Police investigation fails to establish that the entire list of statutory protocols was followed to the letter, the motorist can move and will likely be successful in excluding the breath test results from introduction to the Judge or jury at trial. The exclusion of such breath test results is extremely damaging to the Prosecutions case and will significant hinder their ability to obtain a conviction for drunk driving in Rhode Island.

 If a motorist is able to successfully exclude a failed breath test from evidence at trial, the Prosecution must rely solely on the observations of the arresting officer to prove the case. A skilled DUI trial attorney will have ample ammunition to attack the officer's observations and can typically draw some doubt as to whether the motorist was impaired at the time of operation. In the context of a criminal trial, the Prosecution must prove their case to the Judge or jury beyond a reasonable doubt. This high burden can be difficult to meet relying solely on the Police Officer's observations and the motorist's performance on the field sobriety tests.

If you have been arrested and charged with DUI in Rhode Island after failing a breath test, do not resign yourself to a DUI conviction. We have helped hundreds of clients who have been charged with DUI after a failed breath test. In dozens of these cases, we were able to get the charges reduced or completely dismissed based on defects in the Police Investigation. In the cases in which we were unable to uncover police error, we were able to work with the Prosecutor to mitigate the charges and penalties and achieve the best result for our Clients under the circumstances. 

Give Attorney Matthew Marin a call to discuss your Rhode Island DUI case, especially if you have failed a chemical breath test. Our extensive expertise in this area of the law allows us to pick apart the Police Investigation and put your best defense forward. We are available 24/7 at 401-228-8271 or by email at [email protected].

About the Author

Matthew Marin

Attorney Matthew T. Marin is a highly skilled criminal defense lawyer with an outstanding track record in Rhode Island and Massachusetts. With expertise in DUI/DWI, drug offenses, domestic violence, and white-collar crimes, he is dedicated to providing personalized and effective representation for his clients. A "Rising Star" by Super Lawyers and a member of the National College for DUI Defense and the National Trial Lawyers Top 100, Attorney Marin is committed to staying current with the latest legal developments and giving back to his community through pro bono work.


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Attorney Marin Named A SuperLawyer for Ten Consecutive Years 2014-2023

Attorney Matthew Marin has been named a Rhode Island SuperLawyer for 10 consecutive years from 2014 thru 2023. Each year, no more than 2.5 percent of the lawyers in Rhode Island are selected by the Research Team at Super Lawyers to receive this honor. Super Lawyers selects lawyers who have attained a high degree of peer recognition and professional achievement in their practice area.

Rhode Island Members of the National College for DUI Defense

Attorneys Matthew Marin and Kensley Barrett are both Rhode Island General Members of the National College for DUI Defense. Members represent some of the most experienced and cutting edge DUI defense attorney's throughout the Country. Nationwide, DUI laws are extremely complex and constantly changing and the College facilitates the exchange of innovative defenses throughout the Country.