The Breath Test

The Breath Test

Rhode Island law allows for four (4) types of chemical tests to determine a driver’s blood alcohol concentration.  Those tests include a:

(1)  Breath Test,

(2)  Blood Test,

(3)  Urine Test, and

(4)  Test of “other” bodily substances.

This page focuses only on a Breath Test since the overwhelming majority of Driving Under the Influence cases in Rhode Island involve a Breath Test.  While I have seen many cases involving tests other than a Breath Test, those cases typically arise in charges involving drugs (as opposed to alcohol), when the driver must be taken to the hospital as opposed to the police department or when the breath analysis machine is not operating properly.

More often than not a failed Breath Test of a driver’s blood alcohol concentration is the most convincing evidence of guilt an officer can gather.  What is very concerning about the Breath Test is that the Rhode Island Supreme Court has held that drivers do not have a constitutional right to consult with an attorney before deciding whether to take a Breath Test at the officer’s request.

Rhode Island General Laws § 31-27-2 makes it illegal to operate a motor vehicle in this state:

(1)  With a blood alcohol concentration of .08 or higher, or

(2)  Under the influence of alcohol or drugs to the extent it renders the driver incapable of safely operating said vehicle.

A Breath Test analysis of the driver’s blood alcohol concentration is admissible to prove the driver’s guilt only when:

(1)  The driver consented to the Breath Test,

(2)  A true copy of the Breath Test results were mailed to the driver within 72 hours of the test,

(3)  The Breath Test was performed by an authorized individual and with equipment approved by the Rhode Island Department of Health,

(4)  The Breath Test machine was tested for accuracy within 30 days of the test,

(5)  The Breath Test operator was qualified and certified by the Rhode Island Department of Health within one year of the relevant test, and

(6)  The driver was notified in advance of the test that he had the opportunity to have his own “additional” Breath Test performed and that the officer afforded him the reasonable opportunity to do so.

As is the case with a Preliminary Breath Test, the Rhode Island Department of Health has developed rules governing the administration of the Breath Test.  Specifically, the Rhode Island Department of Health “ensures” the accuracy of these Breath Test machines, which have an admitted margin of error of .005.  Moreover, the Rhode Island Department of Health requires that a Breath Test is not valid unless:

(1)  The officer observed the driver for at least 15 minutes prior to the administration of the test,

(2)  Two valid breath samples were completed, and

(3)  The breath samples were taken “within” fifteen minutes of each other.

If the two (2) samples are more than .02 apart, the Rules call for the administration of a third test.  For example, if the first test yielded a result of .06 and the second test yielded a result of .09, the Rules call for the administration of a third test to be taken within fifteen minutes of the second test.  The Rhode Island Department of Health considers the Breath Test valid if any two (2) of the three (3) tests result in a range within .02 and were taken fifteen (15) minutes apart.  Continuing with our example, if the third test yielded a result of .08 and it was administered within fifteen (15) minutes of the second test of .09, it can be assumed the driver will be charged with DUI.

This example does not contemplate the sciences of retro-grade extrapolation or the elimination of alcohol from the driver’s system.  While these topics are properly raised by defense counsel in appropriate cases, their complexity is beyond the scope of this website.