Challenging the Breath Test in a DUI/ Drunk Driving Case

Posted by Michael Zarrella | May 22, 2011 | 0 Comments

   In Rhode Island, a breath test is most often the means of determining a driver's blood alcohol concentration (BAC) in a DUI/Drunk Driving case. Under Rhode Island law, a driver who fails a breathalyzer test by having a reading of .08% or greater will almost certainly be charged with drunk driving.  As mentioned in previous blogs and my web site at, there are many ways to get DUI breathalyzer results suppressed such as by showing that the stop of the vehicle by the police was illegal, showing that the standardized field sobriety tests were administered incorrectly, and by showing that the breath test was administered improperly, to name a few.  Recently, the reliability of the breath test itself has been brought into question.
      In the City of Philadelphia, there has been a recent discovery that the city's police department was using improperly calibrated breathalyzer machines in their prosecution of DUI cases.
Over 2,126 DUI cases were affected by faulty results over the course of just about one year. Around 1,400 of the 2,126 DUI cases resulted with a guilty verdict or plea to a DUI charge. Many of these cases may have to be dismissed or overturned because of the improperly calibrated machines. The results from these botched breath tests should have a profound effect on DUI law in Rhode Island.  Improperly calibrated breathalyzer machines in Rhode Island can also lead to many invalid DUI convictions.  Too many times lawyers in Rhode Island do not do the proper research to make sure that the breathalyzer machines are calibrated correctly and are in working order.  Defendants and their attorneys need to challenge breathalyzer machines more consistently.
      One issue that has arisen in Rhode Island but that has not been thoroughly litigated is the way the breathalyzer machines are calibrated in the state.  There is much debate on the Intoxilyzer 5000, the breathalyzer machines used in Rhode Island.  Studies have shown that breath tests may vary at least 15% from actual blood alcohol concentration. Approximately 23% of individuals tested by these breathalyzer machines will have a higher and inaccurate BAC reading.
    Breath machines are calibrated by checking and adjusting the internal settings by comparing and adjusting its test results to a known alcohol standard. This is done by a wet bath solution that utilizes an alcohol/water standard in a precise specialized alcohol concentration.  The Department of Health puts the solution into the machine then adjusts the breathalyzer machines to readings to the solution.  This may work fine if the solution is correct.  Recently a member of the Rhode Island Department of Health has testified that there have been no recent tests done by the State to check to see if the solution put into the machine is accurate. The Department of Health is relying solely on the company it buys the solution from and does not preform any tests themselves.  If the solution is off it leads to botched results like those in City of Philadelphia which could have a profound effect on DUIs in Rhode Island.
     If you have been arrested for DUI/drunk driving in Rhode Island you need to call a DUI defense lawyer and make sure he has checked to see if the breathalyzer machine used on you has been properly calibrated. The next big issue in Rhode Island law may be the fact the State does not perform independent tests to make sure the wet bath solution is accurate. Remember without the proper knowledge of DUI law, it will be very difficult to supress the DUI readings and win your DUI case. Hire a lawyer that has the experience and know how to insure you the greatest chance getting your DUI dismissed.
   For more DUI information read my previous blogs and my web site at

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Michael Zarrella is one of Rhode Island's top DUI attorneys. If you have been charged with a DUI or any criminal matter, contact him today.