A. Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of alcohol or any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance, evidence of the alcohol concentration in the blood or breath of the person as shown by analysis of the blood or breath of the person performed in accordance with the provisions of Sections 752 and 759 of this title or evidence of the presence or concentration of any other intoxicating substance as shown by analysis of such person's blood, breath, saliva, or urine specimens in accordance with the provisions of Sections 752 and 759 of this title is admissible. Evidence that the person has refused to submit to a test or tests is also admissible. For the purpose of this title, when the person is under the age of twenty-one (21) years, evidence that there was, at the time of the test, any measurable quantity of alcohol is prima facie evidence that the person is under the influence of alcohol in violation of Section 11-906.4 of this title. For persons twenty-one years of age or older:
1. Evidence that there was, at the time of the test, an alcohol concentration of five-hundredths (0.05) or less is prima facie evidence that the person was not under the influence of alcohol;
2. Evidence that there was, at the time of the test, an alcohol concentration in excess of five-hundredths (0.05) but less than eight-hundredths (0.08) is relevant evidence that the person's ability to operate a motor vehicle was impaired by alcohol. However, no person shall be convicted of the offense of operating or being in actual physical control of a motor vehicle while such person's ability to operate such vehicle was impaired by alcohol solely because there was, at the time of the test, an alcohol concentration in excess of five-hundredths (0.05) but less than eight-hundredths (0.08) in the blood or breath of the person in the absence of additional evidence that such person's ability to operate such vehicle was affected by alcohol to the extent that the public health and safety was threatened or that the person had violated a state statute or local ordinance in the operation of a motor vehicle; and
3. Evidence that there was, at the time of the test, an alcohol concentration of eight-hundredths (0.08) or more shall be admitted as prima facie evidence that the person was under the influence of alcohol.
B. For purposes of this title, "alcohol concentration" means grams of alcohol per one hundred (100) milliliters of blood if the blood was tested, or grams of alcohol per two hundred ten (210) liters of breath if the breath was tested.
C. To be admissible in a proceeding, the evidence must first be qualified by establishing that the test was administered to the person within two (2) hours after the arrest of the person.
D. Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of alcohol, the following may be considered as evidence that the test of the breath of the person was validly administered in accordance with the rules of the Board of Tests for Alcohol and Drug Influence:
1. A report, test result or other documentation indicating the test was performed by an operator holding a permit issued by the Board of Tests for Alcohol and Drug Influence;
2. A report, test result or other documentation indicating the test was performed after the installation of a dry gas cylinder by the Board of Tests for Alcohol and Drug Influence and before the expiration date of the cylinder;
3. A report, test result or other documentation reflecting the results of two breath samples within 0.03g/210L of each other; or
4. A report, test result or other documentation reflecting a control test within 0.01g/210L of the target value of the control.
E. Results of the test of a the breath or blood of the person, if admissible, shall be admitted without reference to measurement uncertainty.
F. 1. At any hearing, documents retained by the Board of Tests of Alcohol and Drug Influence to reflect maintenance on an instrument maintained by the Board for the measurement of alcohol concentration in a person's breath, which have been made available to the accused by the office of the district attorney at least ten (10) days prior to the hearing, when certified as correct by the persons making the report shall be received as evidence of the facts and findings stated, if relevant and otherwise admissible in evidence. If a report is deemed relevant by the state or the accused, the court shall admit the report without the testimony of the person making the report, unless the court, pursuant to paragraph 2 of this subsection, orders the person making the report to appear.
2. The court, upon motion of the state or the accused at least five (5) days prior to the hearing, shall order the attendance of the person making a report intended to be submitted as evidence, pursuant to paragraph 1 of this subsection, when it appears there is a substantial likelihood that material evidence not contained in such report may be produced by the testimony of the person having prepared the report.
Added by Laws 1967, c. 86, § 6, eff. Jan. 1, 1969. Amended by Laws 1972, c. 192, § 1; Laws 1982, c. 294, § 6, operative July 1, 1982; Laws 1984, c. 217, § 1, eff. Nov. 1, 1984; Laws 1994, c. 387, § 8, eff. July 1, 1995; Laws 1995, c. 313, § 8, eff. July 1, 1995; Laws 1996, c. 309, § 10, eff. Nov. 1, 1996; Laws 2000, 1st Ex. Sess., c. 8, § 21, eff. July 1, 2000; Laws 2001, c. 437, § 25, eff. July 1, 2001; Laws 2006, c. 173, § 7, eff. July 1, 2006; Laws 2017, c. 392, § 15, eff. Nov. 1, 2017.