If you took the breathalyzer and failed, you can still win your case. There are several ways to exclude the breathalyzer from evidence.

POLICE MUST FOLLOW PROPER PROCEDURE IN ADMINISTRING THE BREATHALYZER TEST.

Before the court can admit the results of the breathalyzer into evidence, the State must establish a proper foundation to demonstrate that the police officer complied with the law in administering the breathalyzer test. If any of these requirements are missing, the judge may exclude the breathalyzer results from evidence at trial.

First, prior to administering the breathalyzer test the arresting officer must obtain your consent. Consent requires that you voluntarily agreed to take the breathalyzer and were not coerced by the actions of the officer or statements of the arresting officer.

Second, prior to administering the test, the officer is suppose to observe you for 15 minute to ensure that you have not ingested anything, are not burping or regurgitating. This 15 minute waiting period is crucial to ensure that the breathalyzer reading is accurate. Often, police officers do not observe a suspect for 15 minute as required by the Department of Health Regulations and this could result in the breathalyzer test results being excluded from evidence.

Third, the State must test the breathalyzer machine for accuracy within 30 days of the breathalyzer test and the breathalyzer operator was certified within 365 days of the test.

Fourth, that a copy of the test results was mailed to you within 72 hours.

If any of these requirements are missing, a judge should exclude the breathalyzer test results from evidence. There are other factor that can also impact the results of the breathalyzer test. Do not assume that your case cannot be won if you failed the breathalyzer test.

MARGIN OF ERROR DEFENSES TO THE BREATHALYZER IN RHODE ISLAND

If your reading is close to the legal limit, you have a margin of error defense. The breathalyzer machine has a margin of error of .01 percent. Accordingly if your reading is a .08, there is a good argument that you were below the legal limit if the margin of error is factor in. Even if your reading is higher, there are other arguments that you could have a lower reading after considering the margin of error.

Additionally, when other sources of error are factor in, an argument can be made that your true breath alcohol reading is less than what is indicated by the breathalyzer machine. One factor that could reduce the breath alcohol reading is body temperature. Other states have begun to factor in body temperature and reduce the breathalyzer reading to account for the impact of body temperature. If your body temperature is elevated above the body temperature assumed by the machine, studies show your breath alcohol reading could be inflated the higher your body temperature is above the temperature assumed by the Intoxilyzer.