Massachusetts Criminal Defense Lawyer Blog

Massachusetts OUI Defense lawyers will have the opportunity to challenge the accuracy and reliability of the breath test used in the State in a State wide hearing that will be heard in the Concord District Court.

The hearing has yet to be scheduled with a status conference coming up on September 17, 2015. The primary issues are anticipated to be the following:

  1. Discovery issues regarding the out of calibration regarding the breath test that prompted numerous counties to stop using breath test evidence for several months throughout the summer.
  2. Whether errors in the computer source code of the breath test 9510 make the machine unreliable scientifically.


Out of Calibration Issues

The out of calibration issue arose in April of 2015 and came out of reports that the breath test machine was permitting breath test result when the machine should have alerted the operator to an error in the testing. There were two types of situations that came up. One was on the test ticket itself. A breath test ticket looks like this:


Air Blank: 0.00

Subject Test:  .133

Air Blank:  0.00

Calibration Test:  suppose to be between .074 and .086.  This number was below the allowed calibration under the regulations in some breath tests.

Air Blank:  0.00

Subject Test:  .135

Air Blank:  0.00

When the machine takes a breath sample, the air blanks are suppose to be zero, indicating the machine did not have any alcohol in the chamber before or after the test.  The breath test machine also conducts its own internal calibration on every test that is suppose to read .08.  Under the Massachusetts Regulations, the results are admissible if the calibration test is anywhere from .074 to .086, allowing for a .006 margin of error in the calibration test.

The Periodic Test of the Breath Test Machine

The officer in charge of the breath test is suppose to conduct a periodic test. This periodic testing is on a known solution of .08. The results should be within the same tolerance as on a subject test.

Office of Alcohol Testing Response to the out of calibration issue

In response to these problems, many district attorney’s office stopped using breath test evidence. All prosecutors began using the tests again around the middle of July 2015 as the Office of Alcohol Testing claimed that the problems were resolved and related to inadequate officer training.

In response to these issues, I filed a motion to discover how the Office of Alcohol Testing determine that the problem with the machine was related to officer training. Myself along with other lawyers made discovery requests to learn if the problem with the calibration went to the reliability of the machine or poor officer training as OAT claimed.  To read more about the background of the out of calibration issues, there was a helpful article by John Ellement and Evan Allan from the Boston Globe in April of 2015.

In response to this issue, the Office of Alcohol Testing released a CD claiming to show that it resolved the problems with the machine’s calibration.  This discovery response revealed that the Office of Alcohol Testing knew about this problem and did not bring it to the attention of the district attorney’s or defense lawyers.  Further, the responses revealed that numerous police departments were impacted by the machines being out of calibration.

The Office of Alcohol Testing stated that the out of calibration issue arose as a result of the officer not being trained to look to make sure the machine’s calibration is within the accepted range.  OAT claimed that the manufacturer allows for a wider tolerance than the Massachusetts regulations, which resulted in the machine failing to alert the operator of the errors in the calibration.

In response to the Office of Alcohol Testings claim to have resolved the issue, defense lawyers filed motions looking for certain documents, such as:

  • Communications between the Office of Alcohol Testing, District Attorney’s Offices and the Director of Transportation regarding the cause of the calibration issues;
  • Documents that the OAT reviewed to determine which test results were impacted by the out of tolerance issue.
  • Discovery of what efforts were made to discover how many tests were impacted by this error with the machine.

The request I filed detailed roughly 19 items that I believed were not provided by the CD that district attorneys provided in response to discovery requests.  It is anticipated that the Concord District Court consolidated hearing will address these issues.

Source Code Challenge and the Camblin Case

Also part of the consolidated hearing will be a challenge to the scientific reliability of the breath test machine. In a case that was decided on June 12, 2015, the Massachusetts SJC found that a judge committed error of law in not allowing a hearing to determine the scientific reliability of the breath test machine.

The Camblin Court found that the judge should have conducted an evidentiary hearing on the following three issues.

  1. Errors in the Computer source code that could make the breath test machine unreliable;
  2. Evidence that the breath test was not specific for alcohol and whether the fact that other compounds can be confused for ethanol by the machine make it unreliable.
  3. Whether the machine is properly conducting a calibration test prior to every breath test as required by the Code of Massachusetts Regulations.


This hearing will take place in Ayer District Court. Since the Alcotest 9510 is substantially similar to the 7110, the Court allowed defense motions to have a hearing and consolidated these issue with one judge.

It will take many months for these issue to resolve themselves with the first step an upcoming hearing in Concord on September 17th.

If you have questions on the Alcotest 9510 challenge, feel free to contact me and I will be happy to explain the issues before the Court.

To read more about breath test reliability issues, you can see my prior Blog posts on this topic.

OUI drug charges can be difficult for the Commonwealth to prove. This was evident in the recent case of Commonwealth v. Sousa, decided last week. In this case the defendant was convicted of OUI drugs and negligent operation of a motor vehicle after a bench trial in the Malden District Court. Bench trials are very common for an OUI drugs charge given the technical nature of the evidence and defenses.

After the guilty verdict, this case was brought to the Appeals Court. The defendant had appealed his conviction because he had believed that the Commonwealth presented insufficient evidence that the defendant was, in fact, under the influence of a prohibited substance.  In reaching its decision, the Court relied on the decision of Commonwealth v. Ferola, which also found that the Commonwealth must presented particular evidence as to the substance it is alleged that a defendant is under the influence of to support a conviction.

Summary of the Case

The defendant Sousa was pulled over by a Malden Police Officer after a bystander had witnessed the defendant apparently ‘passed out’ in the driver’s seat of his car after inhaling a substance from a canister and alerted the police.

The Officer at the scene had claimed that he had also witnessed the defendant spray an aerosol container into his mouth, which prompted the Officer to order Sousa to turn off the car. Ignoring the command, the defendant placed the car in drive, initiating the Officer to pull out his weapon, and after the defendant finally obeyed the command, the Officer ordered him to exit his car. Sousa did not appear to understand what he was being instructed to do

Eventually, two aerosol canisters were confiscated from Sousa’s vehicle. It was later found that they were computer cleaners and contained difluoroethane. Difluoroethane is a substance that is defined, by PubChem, as a colorless, odorless gas shipped as a liquefied gas under its vapor pressure.

Ultimately, the Appeals Court reversed the decision of the District Court and found the defendant not guilty of operating while under the influence of drugs, however affirmed that the defendant is guilty of negligent operation of a motor vehicle.

How did the Appeals Court reach this decision?

The defendant was convicted of negligent operation, which is an easy charge to prove. In some cases, a defendant may elect to submit a plea of a CWOF on the negligent operation at a bench trial to avoid the additional 60 day license loss that accompanies a guilty finding.

When it comes to the question of whether or not he was under the influence of an illegal drugs, the answer becomes more technical. The main chemical in the aerosol container that Sousa had been inhaling was difluoroethane, which is not included in what is considered an illegal drug, according to the law. Although the Commonwealth argued that the chemicals in the can that the defendant had inhaled fell within the scope of these words, they in fact, do not. After consulting the National Institutes of Health Web, the Court found that the substance that the defendant was inhaling was not equivalent to any of the substances identified in the law regarding this matter. With that said, the Court did not find Sousa guilty of operating a vehicle while under the influence of an illegal drug.

This case shows that an OUI drugs charge has some technical aspects to the defense that make these cases tough for a prosecutor to prove in Court.

To Learn more about what a Prosecutor has to prove to establish the elements of an OUI drug conviction, you can see the jury instructions that would be provided to the jury at trial.

The Rape Trial of Owen Labrie began this week with opening statements and testimony of the complaining witness in the case.

In this Blog, I will review what I see as the strength of the Defense case and why I would expect the jury to find Owen not guilty on the Rape Charge.

The case revealed a disturbing culture at St. Paul Boarding, a New Hampshire prep school, which students referred to as a senior salute. The defense tried to downplay this culture, which ultimately is when older students attempt to ‘hook up’ with one freshman student before graduation, but it is clear that the school prompted a culture degrading to its younger female students.

The real leverage point that the defense has in the case that ultimately, may be enough to create reasonable doubt, is a series of text message that were sent after the incident.

Other points raised during her cross examination that will make it difficult for a conviction is her testimony that she was laughing during the encounter. She testified that she froze and that the laughter was out of nervousness and that she did not know what to do. It is questionable how the jury may interpret this. It has also been noted by the DailyMail that the complaining witness said that she was excited to have attention from Owen, and was unsure if she should feel ‘proud or happy’, over what went on between them. To find out more about this, click here. 

After the alleged incident, the defendant sent a text to the complaining witness stating he loves her and she writes “good” and “ha, ha”. The defense claim that these texts show she could not have been raped and that she, in fact, liked the attention of an older student.

While the cross examination, casts serious questions that would seem to create reasonable doubt, the defendant is expected to testify. Based on the opening statement, it appears he will claim that they did not have sex and that they embraced with their clothes on, after presumably changing is mind about wanting to have sex. The jury may consider the fact that the girl was only 15 at the time in assessing whether her actions were just the product of being young and in shock or someone trying to create attention upon herself. Next week, it is expected forensic evidence suggesting a rape will be presented. This, if convincing, would certainly enhance the credibility of the complaining witness.

In regards to the end of the case, it appears that it will be difficult for a jury to say beyond a reasonable doubt that a rape happened. While the jury is likely to overlook some gaps in the testimony of the victim, given the legal standard, the jury would be compelled to find Owen not guilty as the conversation after does raise questions, uncertainty, and doubt that require an acquittal in a criminal case.

For further reading on the trial, the New York Times had an article detailing the accounts of the trial by Jess Bidgood.  To See a brief video of excerpts from the cross examination of the victim, MyFoxBoston reporter Crystal Haynes had a video clip describing what she witnessed in the courtroom.





In a recent Massachusetts Supreme Court decision, Alfred Tirado v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, the Court held that a continuance without a finding (CWOF) is a conviction funder G.L. c. 90F, section 1, which governs the licensure of commercial drivers. The decision essentially means that CDL holders who plea to an OUI will suffer the same license loss as those found guilty of the charge.  The SJC’s decision in Tirado can be found here.

The case arose out of an Appeals Court decision vacating three Board of Appeals CDL suspensions where the drivers received CWOFs on OUI charges. The Appeals court held that a CWOF was not a conviction. The Board appealed and the Supreme Court overturned the Appeals Court’s decision.  You can hear the oral arguments from the case on the Suffolk Law School Website.

The Supreme Court’s reasoning was based on the Federal Commercial Vehicle Safety Act of 1986 and the subsequent Motor Carrier Safety Improvement Act of 1999. The acts increased the range of offenses that could disqualify someone from maintaining a CDL and implored states to “unmask” dangerous commercial drivers. The regulations stated that practices allowing commercial drivers to enter diversion programs, “masked” convictions and allowed unsafe drivers to pose a risk to other motorists. Massachusetts adopted the 1986 Act in 1998 and amended it in 2006 to include an “anti-masking” provision.

The plaintiffs argued that a CWOF does not require an adjudication of guilt and therefore cannot be considered an admission of guilt or a conviction. The court dismissed the argument and instead held that a defendant’s admission to sufficient facts, accepted by a judge, is enough to show that the defendant violated or failed to comply with the law.

The court further reasoned that the language used in 90F; “to the extent that provisions of this chapter conflict with general licensing provisions this chapter prevails”, shows that the Legislature intended for the statute to be construed liberally.

This decision is an important one for anyone charged with an OUI that has a CDL. CDL holders should closely examine their case with an experienced attorney and consider taking their case to trial.  Attorney DelSignore is a Massachusetts OUI Lawyer that has assisted CDL license holders avoid OUI convictions and maintain their eligibility to hold a CDL license.


In Massachusetts, anyone involved in a motor vehicle accident on a public road is required to stop and give his name, address, and car registration number to any other individual or vehicle operator involved in the collision.

If property is damaged in addition to the motor vehicles involved, or if people are injured in the collision, the operators are also required to give their information to the owner of the damaged property. Failure to do so can result in criminal charges, with hundreds to thousands of dollars in fines and years of confinement.

The chart below shows the consequences of failing to stop after causing property damage or damage to a person. It is important to note that a conviction of leaving the scene of an accident not only carries prison time and fees, but also license revocation as well.


In order for the court to convict a driver of the crime of leaving the scene of an accident, the prosecution must prove 5 elements beyond a reasonable doubt:

  1. that the defendant was the operator of the vehicle at the time of the accident,
  2. that he operated the vehicle on a public road or any place which the public has a right of access,
  3. that the defendant’s operation of the car caused the collision,
  4. that the defendant knew he had caused damage to another person or property,
  5. and that the defendant failed to stop to give his name, address, and registration number to anyone else involved.
  6. In cases where the injured person dies, the prosecutor must also prove this death, and must prove that the driver fled in order to avoid arrest or prosecution. A conviction in this type of case would be considered a “Felony” and must be issued out of a state Superior Court.

Because the burden remains on the prosecutor, there are many defenses that can be raised to raise doubt and challenge each and every element of the Commonwealth’s case. If you were involved in a car accident, and are facing charges for leaving the scene, it is important that you speak to an experienced criminal defense attorney to understand your rights and defenses before deciding how to proceed with your case.

In many leaving the scene cases involving property damage, the case can be resolved with the payment of restitution or a probationary period.  Though the statute allows for the possibility of jail time, if you have no record it would be unlikely to be imposed.  The issue you will face is whether you can resolve the case without a license loss and in a manner that avoids probation. Leaving the scene of personal injury is a more serious offense and the resolution of the case will depend on the seriousness of the injuries.


In a unanimous decision reached by differing concurring opinions, the Supreme Court of the United States finally resolved the question left open by Crawford asking whether statements made to persons other than law enforcement trigger the Confrontation Clause. Publishing its decision in Ohio v. Clark today, the Court unanimously voted that statements made to a teacher at a school program by a child suffering from domestic abuse were not testimonial, and so not barred by the Sixth Amendment Confrontation Clause.

The arguments before the court in this case were fierce, as the Court was poised to make a decision that would either limit a defendant’s Sixth Amendment right to Confrontation or restrict prosecutions of countless cases involving child abuse. You can click here to view a thorough outline of the facts of this case, the arguments, and the relevant law, in a prior posting on my blog.

The Majority decided this case primarily on its unique set of facts in this case, rather than by issuing a categorical legal rule. The Court explained that the record clearly reflected that abused child’s statements were not made with the primary purpose of furthering a criminal investigation or prosecution. Instead, the child spoke with the teacher with the primary purpose of addressing an ongoing emergency, and the teacher’s questions were targeted at eliminating the threat to the child’s life. The Court noted that the conversation was informal and spontaneous, and that even the child’s age (4 years old) calls to question the possibility that the child could appreciate the use of his responses in a criminal investigation while merely responding to his teacher.

Despite the Majority’s heavy reliance on the particular facts of this case to render an opinion, a few legal holdings did arise out of this case. First, the Majority opinion explained that the primary purpose test is not dispositive of the question of whether the Confrontation Clause is triggered, though it is necessary. In other words, although a statement must satisfy the primary purpose test in order to be barred as testimonial, not every statement satisfying the primary purpose test should be barred as testimonial. Both Justice Scalia and Justice Thomas took strong offense to this reading of the Court’s past decisions in their own concurrences.

Second, mandated reporters are not per se agents of law enforcement. The test remains a totality of the circumstances analysis in addition to primary purpose. Just because a teacher’s duty to report is triggered by a statement made to her does not render that statement testimonial. In other words, whether or not someone is under a legal duty to report child abuse is not dispositive, even if the statements resulting from the conversation have a natural tendency to further a prosecution.

The Majority opinion in this case seems to have avoided making any clarifications to what has been a very unclear area of constitutional law. One of the difficulties with these types of fact-specific opinions is that it leaves little guidance to courts and litigators as to how to argue these cases. The Majority opinion, written by Justice Alito, seems to have expanded the Confrontation Clause analysis beyond the relatively clear “primary-purpose” test to an analysis that requires consideration of other unidentified “conditions.” Defense attorneys will certainly continue to raise challenges and appeals in the Confrontation Clause context until the Court publishes guidance that is a bit more satisfactory.

The Massachusetts Supreme Judicial Court is requiring the Court to hold an evidentiary hearing on the reliability of the breath test device the Alcotest 7110. The SJC held that the trial judge’s decision not to hold an evidentiary hearing addressing challenges to the reliability of the machine was wrong. The SJC clearly stated that a defendant who makes a proper showing addressing the reliability of the breath test machine is entitled to a hearing. In other words, the Court stated that trial judges are not permitted to assume that the breath test machine is accurate merely because the legislature approves breath testing under the law, but that breath test is scientific evidence that the Court should hold a hearing to address challenges to its reliability.

The SJC indicated it would retain jurisdiction of the case and require a report within 90 days. It appears that the SJC will review any decision of the district court and address the three issues that it indicated were raised by the case.

The hearing in Com. v. Kirk Camblin, will address the following issues:

  • The Reliability of the Source Code for the Breath Test Machine;
  • Whether the Alcotest 7110 is scientifically reliable because it does not test exclusively for ethanol;
  • whether the Alcotest’s calibration method allow the Alcotest to accurately measure BAC.

The SJC rejected one of the defense arguments that the Alcotest was not infrared technology as required under Section 24K because the infrared portion of the machine does not alone control whether the machine produces a valid test result. The SJC found that even though the Alcotest also uses fuel cell technology it does not negate that it is using infrared breath technology under the Statute and regulation.

Issues to be Decided by the Trial Court and Reviewed the State Supreme Court

Flaws in the Source Code

The defense produced an expert that found over 7, 000 errors and 3, 000 warning signals in the Alcotest computer source code. The Commonwealth contends that despite those errors the breath test machine is still reliable and source code errors are to be expected in a complex computer program. The SJC indicated that the Court does not require scientific evidence to be infallible, but that an evidentiary hearing was needed to address this claim.

As part of his reason for denying the evidentiary hearing, the trial judge relied on the case of State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825 (2008) where the New Jersey Supreme Court rejected a challenge to the reliability of the Source Code; however, the SJC held that trial court cannot resolve these claims without allowing for an evidentiary hearing.

Breath Test is not Specific for Alcohol

The defendant argued that the Alcotest was also incapable of measuring exclusively for ethanol. The defense argued that the Alcotest cannot distinguish between interfering substance and compounds that absorb light at the same micron level as ethanol. The defense claimed that the Alcotest is not capable of measuring alcohol to the exclusion of other interfering substances. The Court reviewed the affidavits submitted by the Commonwealth and found that they were confusing and the record was unclear. The Court indicated that on remand the Court should determine if the Alcotest is sufficiently ethanol specific such that the results are reliable and untainted by interfering substances.

Challenge to the Calibration

The challenge to the calibration seems to be the strongest challenge of the defense. This challenge is different from the calibration errors that have been reported in the media. This challenge is that regulations require a calibration prior to every breath test. The defense claimed that even though the Alcotest appears to calibrate itself, that the source code of the machine takes a different path and executes different instructions for the calibration measurement when it measures the individual’s breath. The defense claims that the machine is not conducting a proper calibration prior to every test as required by the regulations. The SJC noted that the Commonwealth did not rebut any of the defense claims on this point.

What’s Next

This case will be sent back to the district court where a hearing on these issues will be conducted. The Court will address whether:

1. The source code errors are too numerous to make the machine accurate and reliable 2. The Breath test is not sufficiently specific for ethanol to make the results reliable 3. Whether the Alcotest is calibrating itself prior to every test.

As a Massachusetts OUI Lawyer, the outcome of this case is extremely significant because the evidentiary hearing will provide an opportunity to uncover flaws with the Alcotest software. As a practical matter, most charged with OUI, even if they could afford an expert to dispute the reliability of the results, cannot afford to hire experts to address issues pertaining to the machine’s source code. Given that the Commonwealth did not study or test the source code prior to implementing the breath test, but assumed its reliability, this hearing is an important opportunity uncover flaws with the breath test machine that are very technical and could go uncovered as a result of the high cost to a defendant to uncover problems with the source code.

In the case of Commonwealth v. Alphonse, the Massachusetts Court of Appeals awarded a new trial based on the improper argument of the prosecutor. One of the more common grounds to appeal a criminal conviction is based on improper arguments during closing.

In this case, the prosecutor argued that the defendant had the opportunity to tailor his testimony because he was present during the testimony of all the witnesses and not sequestered like other witnesses. This argument was improper because a defendant is Constitutionally required to be present during all testimony and must be present to be afforded the right to confront and cross examine witnesses.

In this case, the Judge cautioned the prosecutor that the argument was improper and indicated to the jury his displeasure regarding that type of argument. Additionally, the judge did grant a directed verdict regarding one of the counts of the criminal complaint.

The Appeals Court found that the improper argument was so significant that it granted a new trial as the key issue in the case was credibility. Improper closing arguments are one of the more common grounds for a court reversing a criminal conviction.

The position of a prosecutor is not suppose to be that of just an advocate but as representative of the Government and attempting to promote justice. A prosecutor is not permitted to make improper arguments to essentially attempt to win at all costs to influence the decision of the jury. Given the argument, it could be the prosecutor had little else to argue other than comment on the fact that the defendant was present during all of the testimony, which is Constitutionally required. Accordingly, the Appeals Court properly granted the defendant a new trial in what would have been a conviction for domestic assault and battery.

For further reading on Improper Closing Arguments, Attorney Stephen Salzburg wrote an excellent article on this topic for the America Bar Journal.

The Massachusetts Supreme Judicial Court heard oral argument in the case of Tirado v. Board of Appeals addressing the issue of whether a CWOF qualifies as a conviction for the purposes of CDL license suspensions. In Souza v. Registrar of Motor Vehicles, 462 Mass. 227 (2012), the SJC held that a CWOF could not count as a conviction for the purposes of calculating subsequent offense license suspensions. The SJC found that because the legislature did not explicitly state that a CWOF was a conviction it could not be used to enhance a license suspension by the RMV. The legislature quickly amended the statute to include CWOF as convictions.

The legislature however, never amended the CDL statute to address whether a CWOF was a conviction for the purposes of CDL license suspensions, leaving the SJC with an issue of great importance for Massachusetts OUI Lawyers.

Under Chapter 90F Section 1, a person is disqualified from holding a CDL license if he or she has certain convictions. The statute defines a conviction as follows:

An unvacated adjudication of guilt; a determination that a person has violated or failed to comply with the law in court of original jurisdiction, in an administrative proceeding, if the adjudication of guilt is within it jurisdiction; an unvacated forfeiture of bail or collateral, deposited to secure a person’s appearance in court, a plea of guilty or nolo contender accepted by the court, the payment of fine or court costs.

The Board of Appeals argued that a CWOF is a determination by the court that a person violated the law and that the Massachusetts statute was meant to mirror the federal statute to include a broad definition of conviction.

The defense argued that since the legislature never explicitly stated that a CWOF is a conviction it was not meant to be covered by the statute and that the legislature could have drafted the statute to explicitly define a CWOF as a conviction.

The federal regulations broadly define a conviction as an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal.

The Board argued that the definition of conviction under the Massachusetts statute mirrored the federal law. In response to one of the questions from a Justice, the lawyer for the motorist was asked what would a determination that a person violated the law consistent of if it did not include a CWOF. The lawyer for the motorist argued that because that finding is not imposed, it cannot qualify as a conviction. The Justice inquired if any other State uses the term CWOF. It appeared that the Justice may side with the Board based on the questions. The Justice suggested that the Court believed that a CWOF is the equivalent of a determination that a person violated the law and is at least as much of an adjudication as a determination that a person violated the conditions of release.

The State argued that failure to comply with the federal definition of conviction would result in Massachusetts losing federal funding and causing the federal government to shut down its CDL license program. As a result the legislature must have intended the Massachusetts statute to mirror the federal law.

The argument has important implications as if the Court accepts the argument that a CWOF is not a conviction those with CWOF would not be considered prior offenders for the purposes of applying for a CDL license in Massachusetts.

The defense argued that in the absence of specific reference to a CWOF in the federal statute or the Massachusetts statute, the issue is whether the plain language of the statute supports the Board’s interpretation of conviction. Relying on Souza, the defense argued that the Court already ruled that a CWOF is not an adjudication of guilt. Because any finding of guilt is deferred, the motorist argued that no judge made a finding that the defendant violated the law.

One lesson from this appeal is that the definition of conviction is extremely broad when you hold a CDL license.

The Massachusetts Appeals Court in an unpublished decision ruled that the lack of an operator’s manual for the new breath test machine did not bar admission of the test results into evidence. The decision was an unreported decision. This decision has been anticipated for almost a year by Massachusetts OUI Lawyers as it was argued on June 5, 2014. The Court held that the power point presentation was sufficient as training for the officer and that the defendant did not claim that the officer lacked formal training to administer the breath test.

The Court held that the OAT was in compliance with the regulation and even assuming it was out of compliance the Court would not have suppressed the breath test result. The Appeals Court did not read the regulation pertaining to the breath test manual as requiring the Office of Alcohol Testing to create a manual.

The decision from the Appeals Court can be appealed to the SJC if the Court grants further review. The timing of this decision is interesting in light of the disclosure that some breath test machines were not properly calibrated. The Office of Alcohol Testing found that the error was caused by the fact that the officers were not trained to ensure that the calibration satisfies the Massachusetts standards. The Appeals Court’s decision essentially minimizing the significance of the regulation requiring that the Office of Alcohol Testing to prepare an operators manual is unfortunate given that this would have prevented unreliable test results from being admitted in numerous cases which caused the most recent controversy surrounding breath test results.

Given the difficulty I had in finding the full decision I have copied it below:

breath test manual decision.pdf