John Coddington House, 2 Marlborough St., Newport, RI 02840-2516

"Breathalyzer Elements for Admissibility"

A Rhode Island DUI Case will often times include evidence of breathalyzer or breath test results. Defense counsel should inform himself of the foundation that the prosecution must lay in order to qualify the particular intoxication test. In the absence of an adequate foundation, defense counsel should object to admission of results of the test. Although all states do not require proof of the same matters, items from the following list could reasonably be required by any court as a predicate, and defense counsel should be prepared to object to admission of the test results if any applicable items are not established by the prosecution:

1. That the subject was legally arrested for driving while intoxicated prior to the demand for the test;

2. That the operator of the device was properly trained and licensed;

3. That the operator and the device were under adequate supervision by an expert;

4. That the chemicals used were compounded properly;

5. That the test was administered in accordance with the test methods directed by the state agency that supervises intoxication test results.

6. That nothing alcoholic was in the subject's mouth for 15 to 30 minutes before the test;

7. That the person interpreting the results of the test was qualified to do so; and

8. That the reading of blood-alcohol content showed a violation of the state statute creating a presumption of intoxication.
A Rhode Island DUI Case will often times include evidence of breathalyzer or breath test results. Defense counsel should inform himself of the foundation that the prosecution must lay in order to qualify the particular intoxication test. In the absence of an adequate foundation, defense counsel should object to admission of results of the test. Although all states do not require proof of the same matters, items from the following list could reasonably be required by any court as a predicate, and defense counsel should be prepared to object to admission of the test results if any applicable items are not established by the prosecution:

1. That the subject was legally arrested for driving while intoxicated prior to the demand for the test;

2. That the operator of the device was properly trained and licensed;

3. That the operator and the device were under adequate supervision by an expert;

4. That the chemicals used were compounded properly;

5. That the test was administered in accordance with the test methods directed by the state agency that supervises intoxication test results.

6. That nothing alcoholic was in the subject's mouth for 15 to 30 minutes before the test;

7. That the person interpreting the results of the test was qualified to do so; and

8. That the reading of blood-alcohol content showed a violation of the state statute creating a presumption of intoxication.



Even when chemical intoxication tests are thought by defense counsel to be admissible, counsel should challenge the foundation laid to the extent possible in order to raise at an early time an issue of reasonable doubt as to his client's intoxication. As a general rule, the test operator would be qualified to testify only to those portions of the test relating to what he actually did, since, in all probability, he is not qualified to give opinions concerning the proper supervision of the machine, the proper compounding of chemicals, or what the results indicate. Such testimony would have to be elicited from the Department of Health representative, whom is charged with certification of breath test operators and breath test machines.
Assumptions on which the validity of breath tests are based, will be customarily testified to by state chemists as absolute. These assumptions should be challenged in the defense objection to the use of breath-test results. While it is unusual for any court to accept evidence of an assumption upon an assumption, and especially unusual in a criminal case, in driving-while-intoxicated cases the courts have held that such matters go only to the weight of the evidence and not to its admissibility. The reasons for this exceptional attitude of the courts are clear: (1) public pressures to be harsher in driving-while-intoxicated cases; and (2) the lack of qualified expert testimony for the defense, with the result that frequently neither the courts nor the juries get to hear what is wrong with breath-test devices. In appropriate cases, defense counsel should offer testimony of his own expert to support his objection to the introduction of the test. As follows, there are numerous examples of challenges to the admissibility of the breathalyzer test.

For instance, the suppression of breath test results and dismissal of the charge for driving with blood alcohol concentration (BAC) of 0.10 or more is the appropriate sanction for the state's due process violation in using an unreliable primary or secondary testing device to determine BAC or in failing to preserve or properly preserve a test sample; however, dismissal of charge for driving while under the influence of intoxicating liquor (DUI) is required only when the state, in addition, unreasonably or knowingly violates a suspect's rights, such as in voluntarily undertaking to participate in a suspect's obtaining of an independent blood test and then failing to make certain that the suspect obtains it, or in asking a suspect to submit to a breath test on a machine the state knows is unreliable or has a faulty repair record. U.S.C.A. Const.Amend. 14; A.R.S. § 28-1381, subd. A, pars. 1, 2. Mack v. Cruikshank, 196 Ariz. 541, 2 P.3d 100 (Ct. App. Div. 2 1999), review denied, (May 23, 2000)

In People v. Miller, 52 Cal App 3d 666, 125 Cal Rptr 341, the court held that it was not error to admit in evidence the results of an intoxilyzer test of defendant's breath which showed an alcohol blood content of .16 per cent, even though an intoxilyzer does not produce test material which can be preserved and retested as does a breathalyzer, but only produces a printout card showing the results of the testing of the subject's breath and of tests conducted with pure air before and after this test. Although the law requires that preservable evidence be retained, it does not require that all evidence which can be reduced to preservable form by any means must be so transformed and then retained, the court said.

The proper foundation was laid for admission under business records exception to hearsay rule of hospital record showing test results of hospital administered blood alcohol test; record was computer printout of test results which were electronically stored in hospital's computer system, computer printout of test results contained only objective, factual data, and since test results were not generated as result of opinions or conclusions of third parties not before court, it was not necessary to produce additional foundation testimony from those parties. O.C.G.A. § 24-3-14. Dixon v. State, 227 Ga. App. 533, 489 S.E.2d 532 (1997).

A computer-generated printout complies with the statutory requirement that the results of a blood-alcohol test be written, Further, there is no statutory requirement that the state introduce the actual blood serum of the defendant as part of the foundation for admissibility of the blood-test results. People v. Ethridge (1993) 243 Ill App 3d 446, 183 Ill Dec 61, 610 NE2d 1305.

The foundational requirement for admissibility of a breathalyzer test of full proof that the equipment was in proper order was not met in State v. Salhus (ND) 220 NW2d 852, where the officer who administered the test testified under cross-examination as to the importance of testing the machine was a known solution, and the only testimony concerning the integrity of the known solution actually used to test the machine was inadmissible hearsay.

The trial court in prosection for driving under influence of alcohol erred in finding DWI instructor unqualified as expert as to metabolic rate at which liver burns off blood alcohol, where instructor's 11 years of experience, certification, and continuing education more than qualified him to explain to jury matters within his expertise that are not matter of common knowledge, such as relationship between metabolic rate, amount of alcohol consumed, and passage of time, as well as effect of relationship on legal intoxication level. Negrini v. State (1993, Tex App Corpus Christi) 853 SW2d 128.

The results of a urinalysis, performed pursuant to a treating physician's direction at the request of a police officer at the hospital to which defendant was brought following a car crash, was a privileged communication, but defendant waived the privilege when he offered the physician's testimony as part of his defense. See State v. Rochelle, 11 Wash App 887, 527 P2d 87, wherein defendant's conviction of negligent homicide was upheld.

In Rhode Island, the foundational elements for admissibility of breathalyzer results are onerous and often times difficult for the prosecution to satisfy. Elements such as the mailing of the test results within 72 hours and compliance with the 15 minute observation period can create evidentiary hurdles, often for very good reason. While the mailing of the test results may seem like more of a technicality than a well grounded component for admissibility, Rhode Island law makes it clear that this is a prerequisite for admissibility of breath test results. In State v Collins, 679 A.2d 862 (R.I. 1996), the Rhode Island Supreme Court stated “We are of the opinion that the purpose of § 31-27-2 is to render inadmissible the results of chemical tests carried out under the supervision, direction, and authority of the police or law-enforcement officials in the event that the requirements of that statute are not satisfied.” This aforementioned statement seems to make clear that the foundational elements need to be satisfied, prior to the test’s admissibility.
Section 31-27-2 of the Rhode Island General Laws provides a useful tool in a criminal defense attorney’s effort to exclude evidence of chemical testing. A thorough examination of this statute and an understanding of the reasons for its existence are fundamental to any DUI, DWI or drunken driving defense.