Recently in Breathalyzer Testing Category

Massachusetts Court orders hearing on Reliability of Breath Test Machine

June 13, 2015,

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.

Massachusetts Appeals Court rejects challenge to breath test results based on the Office of Alcohol Testing not providing a manual for breath test machine

May 21, 2015,

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

Faulty Breath Test evidence in Massachusetts undermines the reliability of OUI convictions

April 25, 2015,

The news this week of errors with breath testing in Massachusetts has had a major impact on the prosecution of drunk driving cases and raises the potential of hundreds of wrongful convictions and or wrongful pleas that were not supported by accurate evidence. One reason this has occurred is the ease with which prosecutors can admit breath test evidence at trial. The Commonwealth can admit the results without calling any witness that knows anything about how the machine operates. At a trial, the breath test operator will typically testify that they are taught to push the button, wait for the machine to run its self checks and if the machine does not report any error, the results are fine. The officer will often admit to not understanding the science behind the machine.

The Commonwealth is not required to call any expert witness from the Office of Alcohol Testing to verify the accuracy of the results. In a case known as Commonwealth v. Zeininger, 459 Mass. 775 (2011), the Massachusetts Supreme Judicial Court said that breath test records can come into evidence without live testimony because the records are not testimonial, meaning that the Court was saying that the records do not accuse a person of a crime but report "neutral" data. The Court's reasoning was flawed and allowed evidence to come in a trials without being properly tested through cross examination. In light of the disclosure of the problems with the machine, the SJC should reconsider its decision in the Zeininger case that is partly the cause of unreliable evidence being presented to jurors during OUI trials.

This bring us to the error that prompted many counties to hold off using breath test results, including Suffolk, Middlesex, Worcester, Essex, Northwestern, Barnstable County.

Prosecutors are explaining that the error is that the manufacturer has broader tolerance for errors than the State regulations and as a result the machine does not notify of the operator of an error. According to the MyFoxBoston report, police are trying to minimize the significance of the problem by claiming they were not properly trained and had inadequate understanding of the machine. Despite district attorneys declining to use the results, police departments will still offer breath tests for those arrested for OUI over this weekend according to a Boston Herald report.

When the breath test machine calibrates itself prior to each individual test, it was suppose to read between .076 and .084 on a known alcohol solution that was suppose to be .08 percent. The problem was that the machine was reading outside of the calibration without notifying the operator of the error. Accordingly, the machine did not have the ability to self-check its own errors as officers testified occurred during OUI trials.

The issue is that prosecutors and police officers have been testifying since the Alcotest 9510 was first used in 2012 in Massachusetts that the machine would not produce a result unless it was working properly. This testimony that occurred in almost every trial with breath test evidence was clearly wrong and inaccurate. The calibration numbers are at least evident from a breath test ticket, but the machine performs many functions that would be undetectable unless the machine was completely examined which does not happen during a trial or even during the annual certification of the breath test machine.

The breath test machine is suppose to have a mouth alcohol detector, a sensor that determines there is no alcohol in the chamber prior to the breath test and makes calculations to convert a breath alcohol reading into a blood alcohol percentage based on an individual partition ratio. All of these functions of the machine are assumed to work properly. The periodic testing of a breath test machine is simply running a known sample through the machine five times. The machine is never challenged to see if any of its features work during the periodic testing. The annual certification of the machine is not rigorous either with the machine being tested at different alcohol levels of .08, .10 and .20 with a sample made in a laboratory.

The problem with breath testing runs much deeper than officers not being trained to catch if the machine fails to calibrate, but centers around having a machine represent per se evidence of guilty in a criminal case and having no reliable evidence in court that it works, other than the machine did not tell us there was an error. Only in a drunk driving case can someone be convicted of a crime based solely on the result of a machine, that even during trials, police witnesses acknowledge they do not know how it works and simply push the buttons waiting for an error message.

The Office of Alcohol Testing should create meaningful testing of the breath test machine while the Courts should recognize that breath test evidence should require live testimony subject to cross examination at trial, rather than permitting the Commonwealth to submit documents, claiming to show accurate results without anyone to provide meaningful testimony as to how to interpret the records and verify that the machine was working properly.

To read more about breath testing and the error with the machine, you can see my previous Blog on the topic.

Breath Test Results in Massachusetts may be in jeopardy as report of faulty breath test machine in Essex County

April 22, 2015,

According to a news report in MyFoxBoston, Prosecutions in Essex County have stopped using breath test results as a problem has arisen with the calibration of the machine. This report was confirmed by several other media outlets. According to one report, the problem arose in a case out of the Lawrence District Court where a defendant accepted a plea but the machine read outside of the accepted range but produced a result anyway.

While I have not learned of the exact error at this point, I did experience a similar problem with a case out of the Attleboro District Court. In that case, the breath test machine appeared to produce a result, but when the machine self calibrated itself on a solution that was suppose to be .08, it read .071. When testing the calibration solution of .08, the machine is suppose to be within a range of .076 to .084. In this case, the machine was outside the range, but it produced a test result as if it was working properly. When the error was brought to the attention of the district attorney, the results were excluded from evidence.

There could be other ways that the machine provides a faulty calibration. Until further information about the problem is disclosed, it would be advisable as a Massachusetts OUI Lawyer to delay resolving any breath test case until the Commonwealth completes its investigation.

Ohio Supreme Court rules in favor of DUI defendant challenging breathalyzer

October 12, 2014,

DUI defense attorneys in Ohio have recently won a substantial victory in the Ohio Supreme Court that will allow defendants to bring stronger challenges to the validity of breathalyzer tests. The Ohio court's decision will require states to comply with discovery requests by the defendant, and produce critical data and records relating to their breathalyzer devices.

In the case of Cincinnati v. Ilg, the defendant was questioned and tested for intoxication after he lost control of his vehicle and struck a fence, sign, and pole. The officer who responded to the accident administered a breath test using the state's device, the Intoxilyzer 8000. The device revealed that the defendant had a BAC reading that was almost twice the legal limit. The defendant was subsequently charged with an OUI.

Before trial, the defendant's attorneys requested that the prosecutor produce records of the defendant's test, as well as test data, maintenance records, and results produced by the Intoxilyzer 8000 machine used to test the defendant. The purpose of this request was to compile enough evidence to demonstrate the inaccuracy of the defendant's breath test on the night of the accident, and so to prevent his BAC results from being introduced in trial. The defendant requested records from his own test, as well as for tests conducted three years prior to his arrest, and three months following.

The state refused to hand over the requested information, stating that it was too costly and time consuming to produce all of the requested records, and that state legislation does not require release of that information. The defendant then asked the court to issue an order compelling the state to release those records, but the state continued to refuse. The court subsequently imposed sanctions no the state prosecutor, forbidding any evidence of the breath tests from being presented into trial. The state appealed.

The Ohio Supreme Court agreed with the trial court's decision because it did not believe that the state was protected by statute from disclosing the information sought by the defendant. The Ohio legislature had previously passed a statute requiring courts to accept the results of an state-approved breathalyzer machine as generally scientifically erliable. This legislation was designed to allow courts to avoid having to hear lengthy expert testimony and arguments by both parties regarding the general scientific accuracy of the results of these state-approved machines.

However, the Ohio Supreme Court distinguished the statute from the defendant's discovery attempt, interpreting the defendant's request to fall outside the scope of the statute. According to the Ohio Supreme Court, the statute only prevents defendants from attacking the general accuracy and scientific reliability of the test procedure and machine approved by the state. The defendant in this case, however, only sought to challenge the accuracy of the results produced by the specific breathalyzer test used in his own specific case. And since the defendant's discovery request is consistent with his attempt to challenge the specific test results in his case, rather than the general scientific reliability of breath tests, the Ohio Supreme Court upheld the trial court's sanctions against the state for failing to comply with the request and court order.

Breathalyzer test results are among the most controversial forms of evidence presented by prosecutors against DUI defendants all across the nation. Breath tests are often found to be unreliable because the BAC readings are often effected by too many unmeasured variables that are inherent in human physiology and metabolism of alcohol. This case is a substantial victory for Ohio defendants, and it comes at a time where many courts in different jurisdictions are beginning to take a closer look at the accuracy of breath tests and the actual reliability of their readings.

Retrograde Extrapolation discussed as a defense at a OUI Trial by Massachusetts Appeals Court

June 16, 2014,

In a recent blog, I discussed a problematic decision by the Massachusetts Appeals Court in Com. v. Dacosta upholding a defendant's conviction on the charge of unlawful operation with a BAC of .08 or greater, when the defendant's BAC level was tested approximately an hour after the traffic stop. In so ruling, the Appeals Court denied the defendant the right to present "retrograde extrapolation" evidence, which may have relieved the defendant of criminal culpability in this case.

The defendant in Dacosta asked the trial judge to require the Commonwealth to present retrograde extrapolation evidence confirming that the defendant's BAC level did not rise between the time of the stop and the time the breath test was taken. Without such evidence, argued the defendant, no reasonable jury could infer the BAC level at the time the defendant was actually operating the vehicle. And since the jury convicted on a per se charge only, the conviction must be vacated since the Commonwealth failed to establish the defendant's precise BAC level at the time of operation. You can read the DaCosta decision by following this link.

The doctrine of retrograde extrapolation essentially stands for the scientific phenomenon whereby an individual's BAC level in the past can be determined from a later measurement by factoring the amount of alcohol consumed, the timing of the consumption, the individual's weight, and any food he may have eaten while or after he consumed the alcohol. In some instances where the doctrine is applied, the individual's BAC level at a point in time soon after consumption may be lower than the BAC level later in time. That is because BAC is a measure of the amount of alcohol that is absorbed in the blood at the time it is measured; as time passes, the body (liver) metabolizes and eliminates alcohol absorbed in the blood at a consistent rate, while the rate at which the alcohol is absorbed in the blood may vary depending on the amount of food consumed and the weight of the individual. Therefore, as in the Dacosta matter, the defendant's BAC may have actually been below the statutory limit at the time of operation an hour earlier than when he was tested, depending on his meal earlier that evening.

The science underlying retrograde extrapolation is not novel; it has been used by prosecutors across the nation to convict defendants on per se charges for several years. However, as the science developed over the years, it has advanced our knowledge of how alcohol is absorbed into the blood, and how rates of absorption may vary depending on several different factors. Because of these advancements, defense attorneys may now call expert testimony to present evidence that the defendant's BAC was actually lower at the time of operation than it was later in the evening due to the differing rates of absorption.

Although the defendant had no burden of proof by virtue of the fact that he is presumed innocent until proven guilty, the defendant's attorney may have opted to call his own expert witness to testify to the likelihood that the defendant's BAC level was actually below .08 at the time of operation. And since information on the defendant's weight, alcohol consumption, and meal earlier that evening can probably only be provided by the defendant himself, the Commonwealth would have likely failed to rebut this testimony.

The unfortunate reality I have encountered as an OUI Lawyer in Massachusetts
is that resources such as expert witnesses are not equally available to the Commonwealth and the defendant. Expert witnesses are rarely called by defendants in such cases because they are very expensive, and many defendants are indigent or simply unable to pay such high charges in addition to attorney fees and taking time off from work to attend court hearings. The only relief for individuals such as Dacosta, therefore, is for the SJC to review this Appeals Court decision, and require the Commonwealth to present expert testimony on the principles of retrograde extrapolation since the burden rests on the Commonwealth to establish the defendant's guilt if it chooses to prosecute.

Colorado State drug lab denounces lab test results used in prosecution of DUI cases

June 12, 2014,

A state forensic lab has just announced that it will no longer endorse several of its test results used in the prosecution of DUI cases. The Colorado Department of Public Health and the Environment's Chief Medical Officer stated last Thursday that the State's blood test lab will not stand by 33 of the 12000 test results reviewed during the investigation. Experienced defense attorneys may soon take advantage of this breaking news to possibility vacate their client's OUI convictions or dismiss the charges all together if the prosecution has relied on lab reports released from the state's lab.

The Department's Chief Medical Officer sent a letter to a local police chief stating that an internal investigation led to the discovery of an incorrect procedure followed by one of the lab's employees over the span of 7 months in 2013-2014. According to the letter, this was strictly an isolated incident of human error, and does not effect the results of any other test conducted by the lab.

This news comes less than a year after the criminal sentencing of Annie Dookhan who pleaded guilty to more than two dozen counts of filing false reports, tampering with evidence, and misleading police officers.

The primary distinction between the controversy in Colorado and Dookhan is in the actual validity of the evidentiary reports released by each lab. The criminal investigation in the Dookhan matter revealed that the reports released by the Hinton lab in Boston were falsified, thereby completely undermining the validity of those tests.

In contrast, the Colorado lab's problematic reports were not explicitly invalid. According to the Chief Medical Officer's letter, the Department is unable to endorse the 33 reports merely because of failures to meet the state quality control measures in those tests. An employee of the state lab evidently failed to properly calibrate the specific Intoxilyzer 9000 device that was used in those 33 tests, thereby resulting in the tests falling outside the acceptable range of quality control calibration checks. Nonetheless, the Chief Medical Officer assured the Police Department that while the Department can no longer endorse the results due to state Board of Health regulations, the results of this investigation do not suggest that the test results are invalid.

This announcement still raises serious concern for the 33 cases reported to have been affected by the state employee's errors. When a driver submits to a chemical test or provides a blood sample to police, the police department transports the sample to the state lab (or third party contractor) for testing. After the lab analysts test the blood for alcohol/drug content, they release a report to the state prosecutor's office. The prosecutor then attempts to admit the test results into evidence during trial, or uses them as leverage in a plea bargain, to reach some form of conviction.

A discovery such as the one made by the Colorado state lab jeopardizes the reliability and credibility of the entire state lab, and presents the possibility for an appeal on prior convictions or a dismissal of ongoing prosecutions.

Breath Test Manual Appeal Heard by Massachusetts Appeals Court

June 7, 2014,

A panel of Justices of the Massachusetts Appeals Court heard oral arguments this Thursday, June 5th, on the admissibility of breathalyzer test results where Commonwealth failed to comply with defense counsel's discovery request for the operator's manual to the breathalyzer device used. The arguments were raised in the matter of Com. v. Kristopher Cormier (2013-P-1923. This issue is of critical importance for Massachusetts OUI Lawyers as a result for the defendant in this case could result in the suppression of breath test results.

The issue is whether the Commonwealth should be allowed to rely on breathalyzer test results during trial where the test results were offered through a testifying police officer who administered the test, and without allowing defense counsel an opportunity to review the manual in preparing his case for trial.

This case was brought to the Appeals Court on an interlocutory appeal filed by the defendant after a trial judge of the Fitchburg District Court denied the defendant's motion to suppress the breathalyzer test results.

In presenting his arguments to the Appellate Court, the defense lawyer referred to the Code of Massachusetts Regulations, chapter 501 section 2. This section of the CMR outlines the purpose and duty of the state's Office of Alcohol Testing (OAT) in creating an alcohol testing program, certifying officers to administer breathalyzers, and regulating alcohol testing procedures. Most importantly for this case is section 2.04(f), which delegates to the OAT the responsibility of "creating and maintaining the Breath Test Operator's Manual." The regulation also charges the Director of the OAT with the duty to "establish a uniform statewide training and certification program for Breath Test Operators." 501 CMR ยง2.07(1).

The defense argued that the Commonwealth should be precluded from presenting breathalyzer test results in his case because the defendant was not provided with a copy of the operator's manual and so was unfairly deprived of the opportunity to scrutinize the breathalyzer test results and the training of the officer administering the test. The essence of the argument, raised by Attorney Steven Panagiotes was that the OAT failed to comply with the regulation, thus resulting in the Commonwealth failing to provide the manual to the defendant.

One Justice stated we wouldn't be here if OAT complied with the regulation and [OAT] didn't seem to even care." The defendant therefore did not have access to the detailed procedures and methods used by the testifying officer in administering the test, and so was unable to adequately cross-examine the witness.

In disputes arising from breathalyzer testing, the details really are of upmost importance to a defendant's case. In failing to provide a defendant with the detailed description of the procedures and protocols in breathalyzer testing, the Commonwealth essentially shields testifying police officers from having to answer difficult questions that may lead to the discovery of a mistake in their tests.

Furthermore, even if it is more challenging for a defendant to examine an officer's qualifications or knowledge of the testing protocol without access to the officer's training material, the requirement of creating a manual may still not address the underlying problem at all. As suggested by one of the panel justices and later admitted by the Commonwealth in its own oral arguments, the regulation does not explicitly require that officers be trained on the operator's manual. In other words, even if the manual did exist at the time of the defendant's arrest (as was required under the regulation), there is no requirement that the certification process for the officers include training on the manual. Under this version of the regulation, police officers are shielded from rigorous scrutiny from all sides.

The Appeals Court is likely to issue a decision within two months. Any result could eventually be appealed further to the Massachusetts Supreme Judicial Court.

Time lapse and admissibility of breath test evidence in DUI trial

June 1, 2014,

The Massachusetts Appeals Court addressed the issue of proving a motorist has a blood alcohol content over .08 under the per se law when there is a substantial time lapse between the time of the breath test and driving observations. This issues frequently arises as one of the many defenses in an OUI charge with breath test results.

The Appeals Court in Commonwealth v. Dacosta recently upheld a defendant's conviction on the "per se" charge of operating a vehicle with a BAC level of .08 or greater when the defendant's BAC level was tested approximately an hour after the traffic stop. According to the Court, no "retrograde extrapolation" evidence was required where a breathalyzer test was administered 55 minutes after the traffic stop. To learn about the science behind retrograde extrapolation see the attached Article by Kurt Dubowski.

The defendant was stopped when an officer noticed a faulty inspection sticker on the windshield. During the stop, the officer observed that the defendant had red glassy eyes and so administered two sobriety field tests. The defendant failed both tests, and so was arrested and transported to a nearby police station.

At the station, officers administered two breathalyzer tests - one 50 minutes after the traffic stop, and the other 5 minutes later. Both tests showed a BAC level of .09. The defendant was charged with driving under the influence, as well as the per se charge of operating a motor vehicle with a BAC level of .08 or greater. The jury found the defendant guilty on only the per se charge.

After the conviction, the trial judge granted the defendant's motion for a required finding of not guilty notwithstanding the jury verdict. The trial judge determined that it is not possible for a reasonable jury to infer the BAC level of the driver at the time he was driving from a Breathalyzer test administered an hour after he was stopped. The Appeals Court recognized that the trial judge was concerned that the driver's BAC level may have changed between the time he was stopped and when he actually submitted to the Breathalyzer. By this reasoning, the Commonwealth would be required to submit evidence to prove that the BAC level could not have risen between those two points in time. The Appeals Court disagreed.

The concern here is that the defendant's BAC level readings may not have accurately represented the defendant's actual BAC level at the time of operation. A driver's BAC level rises immediately after consumption of alcohol, prior to the alcohol's complete absorption into the bloodstream, before the BAC level begins to fall and stabilize. This evidence leads to the argument that the defendant's Breathalyzer readings, standing alone, were not accurate readings of the defendant's BAC level at the time of operation. Therefore, without the Commonwealth presenting "retrograde extrapolation" evidence - mathematical computations estimating a BAC level backwards in time - the jury could not have had enough facts to find the defendant guilty on the per se charge.

Citing to its prior decisions, the Appeals Court found this argument inapplicable because the Breathalyzer were administered within a "reasonable time." According to the Court, a Breathalyzer may be administered up to three hours after the operation of a vehicle. The three hour time period is a reasonable time frame for the defendant to be tested without the Commonwealth having to provide retrograde extrapolation evidence. The three hours allow for the officers to arrest the driver and transport him to a local police station for testing. As the defendant's Breathalyzers were administered within one hour, the Court held that no further evidence was required to be presented to satisfy the per se charge.

Criminal prosecution involving Breathalyzer and blood sample testing can be very complicated and often requires a thorough understanding of both the law as well as the forensic science underlying the evidence.

California Supreme Court bars expert testimony on the scientific unreliability of breathalyzer tests

November 29, 2013,

A California trial judge presiding over the OUI trial of People v. Vangelder was recently affirmed by the California Supreme Court when he prevented a jury from listening to expert testimony on the general unreliability of scientific techniques underlying breathalyzer tests. If appealed to the U.S. Supreme Court, this decision could limit or exclude expert testimony on the scientific unreliability and inaccuracy of breathalyzer tests across all jurisdictions, abolishing what can be a strong defense against an OUI charge.

In the matter of People v. Vangelder, a state officer clocked Vangelder driving late into the night on a speeding on a state highway. After following Vangelder for a few miles without observing any signs of intoxication, the officer pulled Vangelder over to the shoulder of the road. Vangelder was fully compliant with all of the officer's instructions. After being questioned, Vangelder told the officer that he had three glasses of wine at dinner, and that he was just goofing around on the road.

Vangelder passed all field sobriety tests, and then submitted to preliminary breathalyzer tests. The results came in at 0.095 and 0.086. After Vangelder was arrested (the state limit is 0.08) and transported to the station, he submitted to two more breathalyzer exams which returned a reading of 0.08. Vangelder was charged with two misdemeanors - a generic OUI offense, and the more specific offense of driving with a BAC reading above 0.08 percent - despite the inconsistencies in the BAC readings.

During his trial, Vangelder introduced a prominent expert in the field of human physiology and alcohol consumption. This expert witness testified that breathalyzer tests are generally scientifically unreliable measures of blood alcohol content because they do not measure the alcohol directly. Instead, according to the expert, breathalyzer tests rely on an individual's breath at the time of the test, and since a breath may contain several traces of alcohol from sources other than the driver's blood, the test is inaccurate.

The trial judge instructed the jury to disregard the expert's testimony regarding the scientific accuracy and reliability of breathalyzer tests. The jury returned a guilty verdict with regard to the specific offense, but were unable to reach a verdict with regard to the generic charge of driving under the influence.

While the trial was conducted, the California Supreme Court decided on the case of People v. McNeal, where it held that expert testimony on the scientific technique underlying breathalyzer tests is is inadmissible with respect to the more specific offense of driving with a BAC over 0.08 percent, but is only admissible with regard to the generic offense to rebut the presumption that the driver's BAC level was over 0.08 percent while driving. When Vangelder's appeal was raised before the California Supreme Court, the Court elaborated on its earlier decisions and affirmed the exclusion of the expert testimony.

The California Supreme Court explained that the issue of whether the science underlying breathalyzer tests was reliable had already been addressed by the State legislature when it enacted the statutory offenses. Because the legislature was aware of possible conflicts in the underlying science, but still decided to use breathalzyer tests as a measure of a driver's intoxication for the purpose of these offenses, any expert testimony on the reliability of breathalyzer test readings as accurate measures of blood alcohol content is irrelevant.

Under these decisions, if Vangelder wanted to effectively challenge the breathalyzer test, his expert should have testified as to the inaccuracies of the particular breathalyzer device used to test Vangelder's breath. The court's decision only allows the expert to testify that the particular device used on Vangelder was not calibrated, malfunctioned, or improperly used by the testing officer. But since Vangelder's expert stated that he was unable to determine whether the machine was accurately reading Vangelder's breath, his testimony could not defeat the breathalyzer test results.

If this California decision is upheld by the U.S. Supreme Court, Massachusetts OUI defense attorneys may face similar exclusions to expert testimony, which will undercut a major defense. The outcome will depend on how Massachusetts courts interpret the statutory language of OUI offenses, and the intent of the state legislature to incorporate breathalyzer test results as accurate measures for the purposes of the offense. As a general rule of thumb, however an OUI Lawyer should use expert testimony to question the reliability of the actual device used by officers to read a defendant's breath, rather than simply to raise a whole-sale issue of the scientific reliability of breathalyzers to accurately measure BAC. Even if the defense attack is on the general unreliability of breath test evidence, the right of cross examination and the right to a fair trial should make such testimony admissible at trial with the jury to access the weight to be given to the testimony.

Arizona Court Allows Partition Ratio Evidence In Impaired Driving Case

October 14, 2013,

As a Massachusetts OUI attorney, an issue that will arise in many cases will be the accuracy of the breathalyzer machine that displays a driver's blood alcohol content. One of the main reasons this test is unreliable is because of the partition ratio which is used to convert alcohol on the breath into blood alcohol content. The big problem with this however is that a breathalyzer machine will use a standard partition ratio for every person who blows into the machine. However, the partition ratio may be different for every person which may cause the machine to read a much higher blood alcohol content then is actually present. The Arizona Supreme Court just weighed in on the admissibility of evidence of this partition ratio that is used to make the conversion.

The case of Arizona v. Cooperman had the defendant driver being charged with two drunk driving charges. The first charge was driving while impaired to the slightest degree. The other charge was a per se drunk driving charge meaning the defendant was driving with a blood alcohol of over .08. With this per se charge, all that is needed is to show that the defendant was driving within two hours of blowing the .08. In the impaired driving charge, there is no presumption of intoxication, but the breath test can be used as relevant evidence along with other factors to prove intoxication.

In this case, the Arizona court was ruling on the admissibility of partition ratio evidence and whether it was relevant. The court upheld the evidence and stated the evidence for the partition ratio should be allowed. The state argued that the prosecution was only using the breath test on the second charge of the per se violation and no the impaired driving charge so it was therefore irrelevant. The defendant wanted to introduce this evidence to prove he was not impaired even though the prosecution was only using the breathalyzer test to prove the per se violation. The court allowed the evidence stating that there is a strong correlation between blood alcohol and impairment. The evidence of the partition ratio is relevant as it can show the defendant had a lower blood alcohol content and therefore was not impaired. This evidence is still relevant even though the state was only using the blood alcohol content for the per se violation. The partition ratio could not be used as evidence for the per se violation because the per se violation is based solely on alcohol on the breath and the partition ratio will not come into play.

When facing an OUI charge, partition ratio evidence can be an important defense for a defendant. Scientific evidence has proven that there is a large range of partition ratios among people so the test is flawed by giving a generic ratio to every person. These tests have been proven that due to these ratios, the blood alcohol content can be off by significantly. This becomes an extremely important issue when somebody registers close to a .08 as they could actually have very little alcohol in their system. This Arizona case supports that this partition ratio is extremely relevant in proving impairment.

Challenge to Accuracy of Breath Test Results in Pennsylvania heading to the State Supreme Court

September 10, 2013,

Unlike under Massachusetts OUI Law, in some jurisdictions, the statutory penalties of driving under the influence vary depending on blood-alcohol measurements as determined by a breathalyzer exam or blood test. While trial courts across the nation are becoming increasingly skeptical of breathalyzers, the Pennsylvania Superior Court recently reversed a trial judge's decision to dismiss a heightened DUI charge on a finding that breathalyzers are inaccurate. In Massachusetts, the statutory penalties are essentially the same regardless of the breath test results other than for drivers under 21 and other than the additional requirement of an alcohol assessment; of course, a judge is likely to impose a harsher punishment with a higher breath test result.

Last December a trial judge in Pennsylvania rejected a prosecutor's attempts to prove the defendant, in the case of State v. Schildt, guilty of a heightened DUI statutory charge by presenting results from a breath test as evidence of the defendant having a BAC reading of 0.16 percent. A reading of 0.16 percent or greater qualifies a defendant in Pennsylvania for the maximum penalty under the DUI statute, with increased prison time and fines.

After hearing arguments from both parties, Judge Lawrence Clark Jr. ruled that breathalyzers are not scientifically accurate beyond a 0.15% blood-alcohol reading. Judge Clark Jr. then concluded that without an accurate blood-alcohol reading, the State will not be able to prove beyond a reasonable doubt that the defendant Schildt was so intoxicated so as to qualify him for the heightened statutory sentence. He therefore dismissed the charge.

The Superior Court of Pennsylvania reviewed the appeal filed by the District Attorney, and reversed the judge's decision on September 5th. The Superior Court held that issues regarding the accuracy of breathalyzers go to the weight of the evidence presented against Mr. Schildt, and so should be raised and challenged at trial. The Court did not address the accuracy of breathalyzers, however. It merely held that a trial is necessary to determine whether, given possible inaccuracies of breath test readings above 0.15%, the State would still be able to prove beyond a reasonable doubt that Mr. Schildt was sufficiently intoxicated to be subject to the maximum penalty under the DUI statute. The news account of this case was reported by the Patriot News and posted on Pennlive.

The problem with the judge's decision that the jury can weigh the evidence is that it negates the job of the trial judge to act as a gatekeeper to ensure that the jury only hears reliable evidence. The burden of proving the reliability of breath test evidence is on the State and the judge's decision essentially shifts the burden to the defendant to prove the results are inaccurate. The jury is presented with evidence that appears scientific, but has not been tested sufficiently to permit the jury to hear the evidence as if it is reliable. Since the breath test machine in Pennsylvania has never been tested for accuracy for results above .15, there is no basis for the jury to conclude those results are accurate.

Although Mr. Schildt's matter has yet to be tried and resolved, the trial court's findings of inaccuracy of breathalyzer readings over 0.15% has already had a substantial effect on prosecution of DUI cases in Dauphin County - where Mr. Schildt was charged. Following the initial dismissal of Mr. Schildt's case, 19 other DUI cases in Dauphin County were dismissed in accordance with Judge Clark's findings.

Schildlt's defense attorney, Justin McShane, plans to appeal the reversal to the state Supreme Court in an attempt to preserve the dismissals of these cases and to bar prosecutors from relying on breathalyzer readings to prove a defendant's guilt of the heightened statutory charge across the entire state. The DUI Lawyer in this case explains his arguments challenging the accuracy of the breath test results on his Blog the Truth About Forensic Science.

The Pennsylvania trial court's decision scrutinizing breathalyzer accuracy is only one of several recent decisions made by trial and appellate judges nationwide challenging breath test results offered as evidence against DUI defendants. DUI Lawyers should continue to promote judicial awareness of the often unreliable and highly prejudicial nature of this type of evidence in DUI cases.

Ohio Ruling finding breath test evidence unreliable

August 26, 2013,

As a , anytime a person comes into the office after having failed the breath test, I know that I will have to explain to them why the breath test machine can be unreliable and ways the case can be won despite the breath test results. While breath test evidence must be challenged, these results do not mean the case cannot be won in court. In this Blog, we will review a decision from Ohio finding the breath test machine unreliable.

A prominent trial judge in Ohio has just decided that the results of the Intoxilyzer 8000 "are not scientifically reliable."

On August 14, 2013, in the matter of State v. Lancaster, Judge Teresa Liston concluded proceedings that lasted over the span of several months challenging the reliability of the Intoxilyzer 8000 in the Marietta Municipal Court in Ohio. Judge Liston, a well-respected retired judge, was called to the bench specifically to hear several cases combined by the court for the purposes of challenging the Intoxilyzer 8000 alone.

Throughout the hearings, both the State of Ohio and defense attorneys called several key witnesses to testify. For the State, a head engineer for the manufacturer, a prominent toxicologist, and the head of the state alcohol testing program, each took their turns testifying in support of the reliability of the results of the Intoxilyzer 8000. The defense team also called three top experts on toxicology and the Intoxilyzer 8000 device itself to challenge the reliability of the results of the machine as an adequate test of blood alcohol levels.

The court cited particular issues with the device leading to the conclusion that the test results are not scientifically reliable. Expert testimony proved problems in test results as a result of radio frequency interference, flaws in the design of the testing procedure, and the fact that the device is unable to adequately distinguish between actual alcoholic content in the lungs and breath from other substances in the body.

What makes this decision so critical is the fact that the defense team successfully overcame the heavy burden imposed on them by the court to defeat the presumption of reliability previously held by the Ohio courts. In other words, although courts are to act as "gatekeepers" of the type of admissible evidence, the tradition was to require the defendant to overcome a presumption that the devices utilized by the state are reliable. And the defense team in State v. Lancaster did just that, dealing a serious blow to the State attorney's office in Ohio, which is likely to overflow to jurisdictions across the nation.

Because of Judge Liston's strong reputation and the enormous amount of time and attention invested into these challenges to the Intoxilyzer 8000, Ohio defense attorneys expect her decision to have a powerful impact on OUI adjudication as state prosecutors will now be unable to admit test results from the Intoxilyzer 8000 as evidence against OUI defendants. Massachusetts lawyers should press for application of these findings in their own OUI cases, challenging the reliability of breath tests and potentially preventing them from being admitted into evidence against their clients.

Does Massachusetts OUI law provide a defendant the right to take a breath test after refusing one?

April 17, 2013,

As a OUI Lawyer , a case will often involve somebody who nhas refused to take a breathalyzer test after being pulled over. In some cases, a motorist may change their mind and request a breath test after refusing to submit to one. In a recent case, the issue was raised is whether a defendant can offer into evidence there request to take a breath test after an initial refusal.

The Massachusetts Supreme Judicial court recently answered this question in Commonwealth v. Jones. In Commonwealth v. Jones, the defendant was pulled over by two police officers after a truck was witnessed driving erratically. The defendant had blood shot eyes, had an open container of alcohol and was stumbling getting out of the car. After performing poorly on the field sobriety test, the defendant was arrested and brought to the police station.

At trial, the defendant made a motion to permit evidence that while at the police station, he originally refused a breathalyzer test but then "shortly afterwards" changed his mind and asked for the breathalyzer. The prosecution argued this had the potential of opening "a can of worms" of evidence that would be allowed and the judge rejected the motion and did not allow the evidence. The defendant was convicted of an OUI after trial.

On appeal, the SJC ruled that the judge at trial acted within the scope of his discretion in not allowing the testimony. The court explained that this evidence could only excuse the defendant to the extent it suggested a conscious innocence at the time of the request. In other words, the defendant had to be requesting the breathalyzer because he felt he was not drunk and it could prove his innocence. The SJC held that there are too many other reasons for the breathalyzer request and was most likely trying to avoid the automatic license suspension. The court felt allowing this evidence may mislead or confuse a jury, complicate the case or prolong the case. The evidence here was not allowed.

In Massachusetts if you are pulled over for an OUI and refuse a breathalyzer test, evidence that you later requested a breathalyzer and were denied is probably not admissible. However the SJC does seem to leave the door open to cases where defendants are requesting the breathalyzer because they consciously believe they are not drunk. The SJC in Commonwealth v. Jones felt he had other motives in requesting the breathalyzer. It may be hard to prove to a court, but if a defendant can in fact prove they were requesting the breathalyzer because they believed they were not above the legal limit of alcohol, that evidence may be admissible. A top OUI lawyer will argue that all potentially exculpatory evidence shall be admitted and that this falls within that category.

Continue reading "Does Massachusetts OUI law provide a defendant the right to take a breath test after refusing one?" »

New York Court of Appeals narrowly interprets Confrontation Clause, finding the right of Confrontation does not apply to breath test maintenance documents

March 7, 2013,

465392_breathalyzer.jpgAs a Massachusetts OUI attorney, challenges to breath test and blood test evidence based on the 6th Amendment Confrontation must be made in each case as the law continues to evolve in this area. Cases from the United States Supreme Court continue to define the scope of the right of confrontation.

Recently, the New York Appeals Court ruled on the issue of an alleged violation of the "Confrontation Clause" when records for a Breathalyzer test were presented at trial without the verbal testimony of the technicians whom completed the tests.

In State v. Pealer, a police officer stopped the defendant for suspicion of drunk driving. When the defendant failed all sobriety tests, he was arrested. At the station, he failed a Breathalyzer test.

At trial, prosecutors introduced the inspection, maintenance, and calibration records of the Breathalyzer machine to the court to establish the device was working properly at the time of arrest. However, Defendant argued that presentation of this evidence without additional testimony from the technicians who prepared the analysis was a direct violation of the Confrontation Clause. Specifically, it violated the Confrontation Clause because it did not provide Defendant with the opportunity to cross-examine.

Under the Confrontation Clause of the Sixth Amendment to the United States Constitution, in criminal prosecutions, the accused have the right to confront witnesses against them. This right is typically demonstrated at trial with the use of cross-examination pertaining to testimonial evidence.

However, the key in determining violation of the Confrontation Clause is to define what type of evidence is deemed testimonial or non-testimonial. For example, in Crawford v Washington (541 U.S. 36) testimonial evidence was found to violate the Confrontation Clause. The defendant was charged with assault and attempted murder. The State sought to introduce a recorded statement of the defendant's wife made during the police investigation as evidence that the defendant was not exercising self-defense during the alleged stabbing. However, due to Washington's Marital Privileged rights, defendant's wife would not testify at trial. Therefore, because she was not available for cross-examination in regards to her recorded statements, it was held to be a direct violation of the Confrontation Clause.

However, in the present case, New York courts ruled differently. The Breathalyzer documents demonstrating the records of inspection, maintenance and calibration were not testimonial. Instead, they are merely records demonstrating the machine is working properly vs the witness testimony of defendant's wife in Crawford. Therefore, it was ruled that the records did not violate the Confrontation Clause. The decision of courts to admit breath test evidence without live testimony should be viewed as a violation of the confrontation clause.

Issues of violation of constitutional rights often come up in OUI cases. If you have any further questions, you can find additional information on constitutional violations and Breathalyzer tests in many of my past blogs including:

  • Salinas v. Texas will decide whether pre-arrest silence invokes the Fifth Amendment and should be excluded from evidence


  • United States Supreme Court to address whether a warrant is required to obtain a blood sample from DUI suspect

  • Breath test results in Pennsylvania excluded from evidence based on challenge to the linear accuracy of the breath test machine
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