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Breath Tests in Rhode Island DUI Cases

Updated November 8th, 2017

In almost every Rhode Island DUI investigation, the Police will request that a suspect submit to a chemical test.  If a suspect is at the Police Station and the Police believe that a suspect is under the influence of alcohol, the "chemical test" that they are referring to is a breathalyzer. 

The breathalyzer machines that are utilized in Rhode Island are the Intoxilyzer 5000 and, in some instances, the new Intoxilyzer 9000.  These machines estimate an individuals blood alcohol content by measuring the blood alcohol content of deep lung air and converting that to a blood estimate.  These machines (the 5000 and 9000) do not measure drug impairment of any kind; they simply measure alcohol content.  

These in-station machines are very different from the on-scene breathalyzer that the Police often utilize in DUI investigations.  The on-scene breathalyzer is a preliminary breath test which should almost never be taken.  A refusal to submit to a preliminary breath test results in only an $85 fine.  Follow this link to find more information on charges of refusal to submit to a preliminary breath test.

The results of a chemical breath test are incredibly important for the prosecution in a DUI case.  The admissibility of chemical breath tests are governed by the Rhode Island DUI Law and cases decided by the Rhode Island Supreme Court.

For the results of a chemical breath test to be used against a suspect in a criminal DUI case, the breath test must be administered in a particular manner and by protocols established by the Rhode Island Department of Health.  Once received, the breath test result must be handled and tested according to further protocols established by the Rhode Island Department of Health and the Rhode Island DUI Law.

At the Law Offices of Matthew T. Marin, Esq. Inc., we have successfully challenged the prosecutions use of breath test evidence in criminal trials in dozens of different ways.  Below we will discuss the different protocols that must be followed for the prosecution to utilize breath test evidence against you in a criminal DUI trial and the different ways that a skilled Rhode Island DUI Defense Lawyer can challenge the introduction of breath test evidence.  Sources of information relevant to Blood Test Results in Rhode Island DUI cases include:

RI DUI Statute  -  RI Department of Health Blood Testing Rules & Regulations

For information and a no obligation case analysis, contact Attorney Matthew Marin 24/7 at 401-228-8271 or by completing our CONTACT FORM.

Rules for Breath Tests in Rhode Island DUI Cases

The number of different rules pertaining to the administration, testing, and use of breath test evidence in Rhode Island DUI cases is exceedingly complex for both the Prosecution and the Police.  The rules form an intricate web of hurdles that must be overcome so that the breath evidence can be presented at trial.  Those rules come mainly from the Rhode Island DUI Statute (Rhode Island General Law 31-27-2) and Rules and Regulations created by the Rhode Island Department of Health.  These rules apply both when the breath sample is being taken and when the prosecution attempts to introduce the results into evidence at trial.

Protocol for the Police When Administering a Chemical Breath Test at the Police Station

When the Police seek to introduce the results of a breath test at a criminal DUI trial in Rhode Island, the first thing the prosecution must show is that the Defendant consented to the taking of the test.  To prove consent to a blood test, the Police must have complied with the following conditions required by the Rhode Island DUI Statute:

  1. he Defendant must have been read his/her "Rights for Use at Scene";

  2. The Defendant must have been read his/her "Rights for Use at Station";

  3. The Defendant must have been permitted a confidential phone call prior to consenting to the breath test.

In addition to the conditions required by the Rhode Island DUI Statute, the Rhode Island Department of Health has issued Rules and Regulations which must be complied with when actually drawing the blood to be tested.  Those requirements include:

  1. Breath samples shall consist of "deep lung (alveolar) air";

  2. complete test "shall consist of two (2) complete valid breath samples";

  3. he breath samples "shall be taken after the suspect has been observed for a minimum of fifteen (15) minutes to ensure that the suspect has not ingested or inserted any substance into his/her mouth, or caused any residual mouth alcohol to occur";

  4. he breath samples "shall be collected within fifteen (15) minutes of each other";

  5. A new and uncontaminated mouth piece shall be used for each breath test administered;

Testing and Certification of the Breath Test Machine and the Breath Test Operator

In addition to the requirements for the administration of the breath test described above, at trial the prosecution must also prove that (1) the breath test machine was tested for accuracy and (2) the operator of the breath test machine was certified.  These two requirements are part of the Rules and Regulations issued by the Rhode Island Department of Health and the Rhode Island DUI Law.

Breath Test Machine Testing Requirements

When attempting to admit into evidence the results of a chemical breath test, the prosecution must show that the machine was in working order.  To be classified as in "working order", the machine must have been tested for accuracy "within thirty (30) days preceding the test" by qualified personnel.  When tested, the machine must provide a result "within +/- 0.005 or +/- 5% (whichever is greater) of the target value."

Certified Operator Breath Test Requirements

In addition to requirements related to the breath testing machine, Rhode Island DUI law also requires that the individual (usually the police officer) administering the chemical test be certified and properly trained.  The Rhode Island DUI Law states that the operator administering the test "be qualified and certified by the Department of Health within three hundred sixty-five (365) days of the test."  For certification, the Rhode Island Department of Health requires operators be qualified through a written examination and/or practical demonstration of competence within three hundred sixty-five (365) days of the test.

Results of the Chemical Breath Test Must Be Mailed to the Suspect

Another requirement that the prosecution must satisfy to introduce the results of a chemical breath test into evidence at trial is that the results of the test must be mailed to the suspect within seventy-two (72) hours of the taking of the test.  This requirement is part of the Rhode Island DUI Law and can occasionally be overlooked by the prosecution and the police.

Challenges to the Use of Breath Test Results in Rhode Island Criminal DUI Cases

As an experienced Rhode Island DUI Defense Lawyer, Attorney Matthew Marin has successfully challenged the admissibility of breath test results in DUI cases on dozens of different grounds.  Some of the challenges we have successfully argued include:

  • Lack of Consent - Client was confused / mislead / provided improper and inaccurate legal advice by the Police

  • Improper Observation Period - Oftentimes, upon further examination the Police do not properly observe the subject

  • Improper Testing - Failure to change mouthpieces / failure to wait 15 minutes / inadmissible breath test readings

  • Lack of Proper Certification - Machine not tested properly / Police not certified to administer test

  • Results Not Mailed - The results of the breath test are not mailed to the Suspect pursuant to the statutory requirement

Attorney Marin Named A Super Lawyers Rising Star Four Consecutive Years 2014-2017

Attorney Matthew Marin was named a Rhode Island Rising Star by Super Lawyers for 4 consecutive years from 2014 thru 2017. 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 Member of the National College for DUI Defense

Attorney Marin is a Rhode Island General Member 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.