In a DWI case built on a breath test, the number is the State’s key evidence, but it isn’t self-proving. Arkansas lets the result in only if the test followed Department of Health rules: an approved instrument with a current certificate, a certified operator, and at least 20 minutes of uninterrupted observation before the test. Each of those leaves a record, and the records are where a breath result gets tested.
Here’s how breath testing works in Arkansas, what the State has to show, where results go wrong, and how the defense challenges them.
A Deadline And A Right
Driver Services must receive your written request for a license hearing within seven calendar days of the suspension notice, which is usually the receipt the officer gave you at the arrest. And if the officer didn’t advise you in writing of your right to your own additional test, the State’s test result is inadmissible. Keep every paper from the night of the arrest.
Two Different Breath Tests
A typical Arkansas DWI case can involve two breath tests, and they work very differently:
| Test | What It Is And How It’s Used |
|---|---|
| Roadside preliminary breath test | A handheld screening device used before an arrest. Under the Department of Health’s rules, its results aren’t used as evidence in court to show you were under the influence, though they can support probable cause for the test at the station. |
| Evidentiary breath test | Given at the station after an arrest, on an Intoximeter EC/IR II, the instrument the Department of Health approves. It’s covered by implied consent: refusing it is a separate violation with its own license suspension, and the refusal can be used at trial. This is the number the State relies on. |
Ark. Code §§ 5-65-202, -204, -205; Ark. Dep’t of Health, Rules Pertaining to Alcohol Testing § 4.30 and definitions (Type A and Type B devices) (2022).
What Arkansas Actually Measures
Arkansas defines alcohol concentration in breath terms as well as blood terms: grams of alcohol per 210 liters of breath, or per 100 milliliters of blood (Ark. Code § 5-65-204(a)(1)). So a breath result of .08 or more is measured against the limit directly. The instrument isn’t estimating a blood number, which is why arguments about converting breath alcohol to blood alcohol, the “partition ratio,” don’t fit a breath-based .08 charge. Breath challenges turn on procedure, timing, and records instead.
What The State Has To Show
Arkansas requires breath tests to follow methods approved by the Department of Health, which certifies both the operators and the instruments (Ark. Code § 5-65-204). In practice, that means:
- An approved instrument. The Intoximeter EC/IR II models are the Department’s approved evidential instruments.
- A current instrument certificate. Certificates are issued for three months at a time and renewed quarterly. A gap in the records is a problem for the State. See what if the breathalyzer wasn’t calibrated?
- A certified operator. The officer running the test must be certified and must renew with the Department every two years.
- The 20-minute observation. You must be observed for an uninterrupted period of at least 20 minutes immediately before the test, to rule out mouth alcohol from belching, reflux, or vomiting. If the officer was out of the room, turned away doing paperwork, or driving you to the station during that window, the observation can be challenged.
Ark. Code § 5-65-204; Ark. Dep’t of Health, Rules Pertaining to Alcohol Testing §§ 1.15, 1.31, 3.40, 4.30 (2022).
The certification records come in without a witness, but you have the right to call or cross-examine the operator, the person who certified the instrument, or a representative of the Department’s Office of Alcohol Testing, by a subpoena issued at least 10 days before the hearing or trial (Ark. Code § 5-65-206(d)). And because police don’t have to preserve a breath sample (California v. Trombetta, 467 U.S. 479 (1984)), a breath challenge is a challenge to the procedure and the records, not a retest.
Where Breath Results Go Wrong
Mouth Alcohol
Belching, reflux, or vomiting can bring alcohol into the mouth and inflate a reading. The 20-minute observation exists to catch that, so the video of that window matters.
Certification Gaps
A lapsed operator certificate or a gap in the instrument’s quarterly certification goes straight to whether the result can be admitted.
Timing
Alcohol levels keep changing after the last drink, and the test always comes after the driving. The timeline can cut either way.
The Written Advisement
If you weren’t advised in writing of your right to your own test, or weren’t reasonably helped to get one, the State’s result is inadmissible.
None of this means every breath test is wrong. It means the number is only as reliable as the procedure behind it, and the State has to prove that procedure.
Timing: The Four-Hour Window
For a result taken at the time of, or within four hours after, the alleged offense, Arkansas law sets two markers:
- 0.04 or less: the law presumes you were not intoxicated.
- Above 0.04 but under 0.08: no presumption either way. The result is weighed with the other evidence.
A delay isn’t a defense by itself. The Arkansas Court of Appeals has held that a breath test taken well within two hours of the offense was enough to establish the alcohol concentration at the time of driving, and it rejected a rising-alcohol argument with no evidence behind it. A rising-alcohol defense needs facts: when you last drank and ate, when you were stopped, and when the test was given.
Ark. Code § 5-65-206(a); Hayden v. State, 103 Ark. App. 32, 286 S.W.3d 177 (2008).
Your Right To Your Own Test
If you take the officer’s test, you can have a physician, nurse, or other qualified person of your choice run a complete additional test. The officer must advise you of that right in writing, and must permit and reasonably assist you in getting the test. If the officer fails to do either, evidence of the State’s test can’t come in. Courts look for substantial compliance with the written advisement, and the help required is what’s reasonable under the circumstances. If you’re found not guilty, the arresting agency has to reimburse the cost of your additional test.
Ark. Code § 5-65-204(d); Lampkin v. State, 81 Ark. App. 434, 105 S.W.3d 363 (2003). See what police reports leave out.
How A Defense Attorney Challenges A Breath Test
A breath challenge is built from records, not speculation. The usual sequence:
1. Get the Instrument’s Records
Certification records, maintenance and repair history, and the test record for the specific instrument used, not a general statement that “the machine was certified.”
2. Check the Operator’s Certification
Was the officer’s certification current on the test date? Operators renew every two years.
3. Reconstruct the 20 Minutes
Booking video, body-cam footage, and timestamps show whether the observation was continuous, and whether you belched, vomited, or put anything in your mouth.
4. Build the Timeline
When you last drank and ate, when you were stopped and arrested, and when the test was given, measured against the four-hour window.
5. Check the Written Advisement
Whether you were advised in writing of your right to your own test, and whether you got reasonable help when you asked for one.
6. Choose the Remedy
Depending on what the records show: a motion to exclude the result, a motion in limine on how it’s presented, or cross-examination of the operator or the person who certified the instrument, subpoenaed at least 10 days ahead.
The breath test is only one layer of the case. The legality of the stop, the field sobriety tests, and the arrest come first, and evidence that flows from an unlawful stop or arrest can be suppressed. See when a motion to suppress can win your case.
What About Blood Tests?
Blood tests work differently. In Arkansas, a blood test requires a warrant unless you expressly consent or there’s a genuine emergency, and declining a warrantless draw isn’t a refusal (Ark. Code § 5-65-202(c); Birchfield v. North Dakota, 579 U.S. 438 (2016)). A blood sample can be retested, and its weak points are how police got it and how it was handled. See blood test vs. breath test and when police can force a blood draw.
The Bottom Line
A breath result feels final. It isn’t self-proving: it has to come from an approved, currently certified instrument, run by a certified operator, after at least 20 uninterrupted minutes of observation, with a written advisement of your right to your own test. When one of those fails, the result can be kept out or given less weight, and the records that show it should be requested early. For the full picture after an arrest, see the first-offense DWI guide.
Related Reading
Failed a Breath Test in Arkansas?
Let’s look at the test, the timeline, and the paperwork. And mind the license deadline: Driver Services must receive your hearing request within seven calendar days of the suspension notice.
Updated October 24, 2026
This blog post is provided for general informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship with Wesley Rhodes, Attorney at Law. If you need legal advice about your specific situation, you should consult with a qualified criminal defense attorney.