Breath testing devices (“breathalyzers”) are commonly perceived by the public as extremely reliable indicators of drunk driving. As an experience lawyer, I know that this is not true. If you have submitted to a breath test (which I discourage you from doing ever again) you need a lawyer who understands the intricacies and idiosyncrasies of breath testing. If the test is not administered properly the result should be kept out of evidence at trial. The manner in which alcohol is absorbed by the body is complicated and there are many factors that will impact the results in breath testing. Simply put, there are ways to beat an over 0.08 breath test reading at trial and I know how to do it.
Breath test evidence is presented at trial by a police officer who has been received training that allows him or her to be called a “certified operator.” While this sounds impressive, the actual training is limited and can be attacked at trial. Under some circumstances the breath test result can be excluded from evidence so the jury won’t even hear it. Breath test results may be excluded if the machine operator failed to comply with requirements of Massachusetts General Law chapter 90, section 24(1)(e), or the many limitations and regulations found in Chapter 501 of the Code of Massachusetts Regulations, sections 2.01-2.57.
Under Massachusetts General Law chapter 90, section 24(1)(e):
- the accused must have given his or her consent to the breathalyzer test;
- the test results must be made available to the defendant; and
- the accused, at his or her request, must have been given a reasonable opportunity to undergo an independent test.
In addition, Massachusetts General Law chapter 90, section 24K, requires that the breath test be administered:
- by a certified operator,
- using infrared breath-testing equipment, and
- following methods approved by the Secretary of Public Safety.
The regulations found in Chapter 501 of the Code of Massachusetts Regulations, sections 2.01-2.57 set forth testing criteria as required by Massachusetts General Law chapter 90, section 24K. Challenges for failure to follow the testing criteria can include that:
- the test was not performed by a certified breath test operator,
- the breathalyzer was not certified,
- the test results were not recorded in the maintenance and use log,
- the accused was not observed for fifteen minutes before the test was administered,
- the machine was not properly calibrated,
- the simulator solution had expired,
- the simulator solution had not been replaced after three consecutive low readings,
- subsequent repairs were made to the machine, or
- the test was not administered under the conditions recommended by the regulation.
Starting in 2007, I worked with a group of Lowell-based defense attorneys to challenge the scientific underpinnings of breath testing in an effort to exclude breath testing results from evidence because they are simply too unreliable. The District Court Department consolidated the motions of 62 defendants charged with Operating Under the Influence with breath test results above the legal limit. The lead case is captioned Commonwealth v. Daen and the matter was assigned to Judge Mark Sullivan. After over a year spent negotiating the disclosure of the breathalyzer’s computer code to a defense expert, the 62 defendants filed a consolidated challenge arguing that:
- The breathalyzer’s software is badly written with many programming errors which makes it unreliable;
- The physiological assumptions behind relying upon breath alcohol content to calculate blood alcohol content is based on an outdated understanding of respiratory physiology;
- The measuring devices for breath alcohol are not specific to ethanol and can be influenced by other alcohols or compounds.
I along with the other lawyers working on this challenge were astonished when Judge Sullivan denied the motion without even granting us a hearing. He based his ruling on the statutory admissibility of breath test evidence (which has nothing to do with its reliability) and the fact that the New Jersey courts had previously found the breath testing machine in question to be scientifically reliable. We filed a forceful motion to reconsider which was also denied. We then filed a petition to the Supreme Judicial Court seeking relief from the judge’s denial of our motion without an actual hearing. In June of 2015 the SJC agreed with us and ordered a hearing on this issue.
Prior to receiving a ruling on the SJC argument, in April of 2010, the Middlesex District Attorney’s Office and several other prosecutor’s offices announced that they were suspending the use of breathalyzer evidence due to concerns about its reliability. The Massachusetts State Police notified the prosecutors that the solution used in the breathalyzers did not have the required concentration to ensure that the machine was properly calibrated. These machines were supposed to shut down when their internal calibration check failed. In every hearing and trial where I and other defense attorneys challenged the reliability of these machines, the certified officer has defended it by assuring that if there was a problem with the device, the internal self-check would have shut the machine down. This is what the prosecutors said in the lead-up to us filing our challenge to the breathalyzer to justify why we shouldn’t be able to review the computer code and components of the machine; this is what we heard when the judge denied us a hearing to explore this issue further; this is what we continued to hear at trial when we ask questions about the reliability of the results. This litigation is far from over.
If you have been charged with OUI, please contact me for a free consultation. I will bring this knowledge and expertise to your case and make sure that no junk science is used against you in prosecution.
UPDATE (9/17/17): Massachusetts Office of Alcohol Testing withheld evidence of faulty breath test results. Your open case or conviction could have been impacted.