Recently in Breathalyzer Testing Category

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

    January 11, 2013,

    For Massachusetts OUI lawyers, the recent decision of the Pennsylvania Superior Court may be used to challenge the admissibility of breath test results in Massachusetts.

    In the recent case of Commonwealth v. Schildt, the defendant's Attorney Justin McShane argued that the breath test machine was incapable of producing accurate and reliable results outside a linear range of .05 to .15. This argument was made because Pennsylvania does not test its breath test machine for accuracy outside of those values. The victory in the case by Attorney McShane was the results of years of dedication to understanding the science of involved in DUI cases which has made him one of the leading DUI lawyers in the United States.

    Pennsylvania law, like Massachusetts OUI law has a provision that any breath test result over .08 results in a presumption that the individual is under the influence of alcohol. This is considered a per se violation because if the breath test results is admitted into evidence and deemed reliable, there is a presumption of impairment.

    The defendant argued that the Commonwealth of Pennsylvania need to calibrate the breath test machine to account for the entire linear range of values that the machine could produce.

    Under Pennsylvania law, a defendant faces more strigent penalties if a breath test result is over .15. Massachusetts law does not enhance penalties for higher breath test reading other than imposing additional alcohol treatment for those under 21, attendance at in-patient program if the breath test result is over .20, and if over 21, the completion of an alcohol evaluation known as a 24Q evaluation.

    In makings its breath test challenge, the defense called three expert witnesses. The trial judge also found that the testimony of the expert from the State may have demonstrated that the State was not following the proper procedure for breath testing, undermining the accuracy of all test results State wide.

    The trial judge noted that Pennsylvania DUI law requires that the manufacturer of a simulator solution shall certify to the tester that is solution is of the proper concentration to produce the intended results when used for for callibrating breath test devices.

    A second issue arose during this proceeding, that is, the calibration of the breath test machine by a third party, is required by law. The manufacturer of the Intoxilyzer employed in-house calibration of the devices, as described by the prosecution's sole expert witness and did not have the devices calibrated by an independent party. The testimony for the prosecution, clearly supports the defendant's claim that the results stemming from an Intoxilyzer 5000EN are not legally acceptable under the state's regulatory standards for calibration.

    Pennsylvania law states that the certification shall be based on gas chromatography analysis by a laboratory independent of the manufacturer. The State's expert testified that CMI, the breath test manufacturer, does not follow that procedure. The Court found that the State has blatantly ignored the regulations implemented to establish the accuracy of breath test results.

    The defense expert testified that the State would need to test the breath testing machine at higher ranges to ensure accuracy of the machine at values above .15. The court noted that the manufacturer tests the breath test machine at values above .15, but the machine is never tested at those higher values once it leaves the manufacturer's hands. Accordingly, the trial judge excluded the results from evidence.

    Breathalyzers in D.C. Are Back After 2-Year Hiatus

    October 5, 2012,

    Motorists in Washington D.C. may again face police departments armed with breathalyzers, following a two-year hiatus connected to inflated results that led to dozens of faulty convictions. twobeers.jpg

    Our Massachusetts DUI lawyers understand that the previous machines were producing readings that were, on average, about 20 percent too high. About two dozen of those convicted sued the city, and received a settlement of about $130,000. Hundreds more convictions have been called into question.

    Metro Police say they have addressed the issues, but we would argue that no machine is every guaranteed 100 percent of the time. That's a serious issue because those arrested and convicted of a DUI may serve jail time, lose their jobs and be compelled to pay heft fines. Breathalyzer results are often the key piece of evidence used in convictions.

    Police say one of the reasons they have taken their time before re-implementing the breathalyzer program was that they wanted to ensure the program they had in place would be scientifically viable and able to hold up in court. However, we anticipate further legal challenges, particularly given the tougher DUI penalties that the city council approved over the summer. The measures were formally adopted Aug. 1.

    Among those changes:

    • Jail time has doubled for someone who has a blood-alcohol level of between 0.20 percent and 0.24 percent. It has gone from five days to 10 days.
    • For someone who is arrested with a blood alcohol content of 0.25 percent or higher, the minimum jail sentence has been bumped to 15 days.
    • Drivers who are deemed drunk with a child in the vehicle now face a minimum of five days in jail, with minimum fines more than tripling, from $300 to $1,000.
    • Maximum DUI sentences have doubled, from a three months to six months.
    • Commercial drivers, those behind the wheel of taxis or trucks, can be prosecuted for a DUI if they have a blood alcohol content over 0.04 percent (below the regular legal limit for everyone else, which is 0.08 percent).

    Although these measures are only in place for D.C. motorists, those in neighboring states or who travel frequently to the city should take note. It's illustrative of a trend throughout New England: law enforcement and lawmakers continue to work together to make laws tougher on those convicted of driving under the influence of alcohol or drugs.

    Breathalyzers are frequently used by law enforcement agencies, both in Massachusetts and throughout the country, in DUI cases, and have been for years. During that time, numerous legal challenges have been raised regarding their accuracy.

    For example, just this year in San Francisco, it was learned that the police department there had not been regularly testing the accuracy of breathalyzer machines. As such, hundreds and possibly thousands of DUI convictions handed out over the last six years could be overturned.

    The problem is in the way these devices are designed. They measure the blood alcohol level as it can be found on your breath. This is essentially an estimate, and not an exact measure of what is in your blood. Plus, breathalyzers are designed to measure your BAC based on the average person. So your metabolism, sex, height and weight - which can each have an effect on whether are not you are actually intoxicated - are not taken into account.

    Continue reading "Breathalyzers in D.C. Are Back After 2-Year Hiatus" »

    Recent United States Supreme Court case, Williams v. Illinois, makes a Sixth Amendment Confrontation Clause Decision.

    July 5, 2012,

    As a Massachusetts OUI Attorney, the recent decision of the United States Supreme Court has importance consequences in defending drunk driving case involving blood and breath test evidence. The Williams v. Illinois decision is noteworthy as to how divided the court was in its reasoning finding that the defendant's Sixth Amendment rights were not violated. The decision was a 5-4 decision that could impact the admissibility of blood and breath test results for individuals charged with DUI in Massachusetts.

    In Williams v. Illinois, the United States Supreme Court issued a decision on the Sixth Amendment Confrontation Clause that makes the Court's interpretation of this Constitutional provision unclear and confuses this area of law for criminal defense lawyers, prosecutors and trial judges. In this 5-4 decision, 4 justices in what is referred to as the Plurality joined the decision of Justice Alito and Justice Thomas concurred separately in the judgment.

    In the Williams case, the State called an expert witness who testified that a DNA profile produced by an outside laboratory, matched a profile produced by the state police lab using a sample of the defendant's blood. The defendant contended that the expert's testimony violated the defendant's right of confrontation when the expert testified that the DNA profile provided by the laboratory was produced from semen found on the victim's vaginal swab.

    The Plurality opinion held that the statement did not violate the Confrontation Clause for a number of different reasons. First, the Justices concluded that the statement of the expert did not go to the truth of the matter asserted. The Court noted that expert witnesses can rely on facts to which they do not have first hand knowledge.

    Further, the Court stated that the report even if it had been admitted would not have violated the Confrontation Clause because it was produced before any suspect had been identified; the court reasoned that the report did not inherently incriminate the defendant, but could have been exculpatory. The 4 Justice found that the testimony regarding a match between the DNA profile found in the semen of the victim was not admitted for the truth of the matter asserted, but was a premise of the question that the expert assumed to be true. The Court then held that the argument of the dissent would have had more force in a jury trial and that it was unlikely the judge would have accepted the testimony for the truth of the matter asserted.

    As a final reason for affirming the conviction, the Plurality held that even if the testimony was admitted for its truth, it would not violate the confrontation clause because it was nontestimonial and did not have as its primary purpose to accuse the petitioner or create evidence for use at a criminal trial.

    The Williams decision was noteworthy for the concurring opinion of Justice Thomas which was not joined by any other member of the Court. Justice Thomas concurred in judgment and held that he agreed with the dissent's view, but concluded that the report lacked the requisite formality and solemnity to be considered testimonial.

    Justice Thomas rejected the State's argument that the facts which an expert relies are not admitted for their truth; Justice Thomas held that he would not let the Rules of Evidence so easily trump a defendant's right of confrontation. Justice Thomas wrote that he rejects a "primary purpose test" because it bring more statements than intended into the scope of the confrontation clause.

    Justice Thomas concluded that the primary purpose test gives no principled way to decide what is more important to end an emergency or to accuse someone of a crime. Justice Thomas claims that the solemnity requirement is true to the history of the Constitution and does not have practical difficulties in application because a statement to end an emergency is unlikely to bear the requirements of formality and solemnity required for confrontation in his view.

    Justice Thomas criticized the majority's reformulation of the primary purpose test to exclude statements from the confrontation requirement if made before the accused has been identified. Justice Thomas held that a witness against the defendant can occur before the defendant has been identified.

    Justice Kagan filed a dissenting opinion which was joined by Justice Ginsburg, Justice Scalia and Justice Sotomayor. The dissent viewed the case as a straight application of Melendez-Diaz and Bullcoming and would have found that the defendant was deprived of his right of confrontation. The Williams decision was noteworthy for several respects as was point out in the Confrontation Blog on the case.

    First, it reveals that 4 Justice insist on attempting to overturn Melendez-Diaz. The decision may not have significant impact on the Sixth Amendment Confrontation Clause doctrine as there was no majority.

    As a Massachusetts OUI lawyer, I found the position of Justice Sotomayor joining the dissent as significant since her concurrence in Bullcoming suggested she may have more narrow view of Confrontation Rights. The dissent of Justice Kagan revealed a very strong interpretation of the right of confrontation that was articulated in Crawford and Melendez-Diaz.

    Framingham DUI: Five Times Over the Limit Calls Results Into Question

    May 28, 2012,

    A man arrested for a Framingham DUI was reportedly five times over the legal limit, according to The Boston Herald. tunnel.jpg

    Framingham DUI attorneys question why authorities had this individual in jail taking mugshots, when he probably should have been taken to a hospital. Alternatively, one would wonder if there may be something wrong with the breathalyzer test.

    News reports indicate that the man, from Ashland, blew a blood alcohol level 0.41. That is more than quintuple the legal limit of 0.08 percent.

    The 62-year-old was booked on charges of negligent operations, drunk driving and failure to stay in marked lanes. As it was his first arrest - ever - he was released on his own recognizance, without prosecutors requesting any bail.

    Officers reportedly responded to a single car crash mid-day on a Monday. They reportedly came across the driver, who at first denied that he had been drinking. He was reportedly slurring his words and couldn't walk in a straight line.

    He then later admitted he had been drinking vodka at his home earlier in the day. He was reportedly on his way to a pub, according to police.

    There are no details immediately available regarding the accident.

    However, given the high level of alcohol that this man reportedly blew, it's a wonder he could even put his key in the ignition. The toxicity levels are in fact near fatal.

    And yet, according to police, he was still walking and talking and forming semi-coherent sentences.

    In fact, that may be a key to this man's defense.

    According to the Ohio State University, someone with a blood alcohol content of 0.11 to 0.15 is considered drunk. They would be impaired, have trouble with motor skills and may have memory lapses.

    Someone with a blood alcohol level of 0.15 percent to 0.19 percent would be considered "very drunk." They may have difficulty walking or talking and may also have symptoms such as nausea, dizziness and blurred vision.

    Someone with a blood alcohol level of 0.20 would be disoriented or confused. He or she may not be able to walk or stand. Vomiting is common.

    At a blood alcohol level of 0.30 percent, a person is considered to be in a "stupor," meaning they are likely to pass out.

    Someone with a blood alcohol level of 0.35 percent is reportedly the equivalent of someone being under general anesthesia, which means his or her breathing could stop.

    So then we get to the 0.40 blood alcohol level. Researchers at Ohio State University indicate that at this level, the individual is in a state similar to a coma. There is a slow down of nerve activity, the heart slows and there is a possibility of death.

    And yet, this man blew over that - a 0.41 - and was operating a vehicle, walking and talking.

    What all this says is that there could be some fault with the breathalyzer machine being used in Framingham DUI cases.

    And if the machines returned faulty readings in one case, there could be many more that have not yet come to light.

    Continue reading "Framingham DUI: Five Times Over the Limit Calls Results Into Question" »

    Breathalyzer Test Results Often Challenged in Massachusetts Drunk Driving Defense

    September 8, 2011,

    Authorities in Florida are facing higher costs of prosecuting DUI offenders because of questionable breath test results and aggressive defense of clients tested by the Intoxilizer 8000.

    Massachusetts DUI defense attorneys know how unreliable breathalyzer tests can be. Currently, high-profile examples include Washington D.C. (authorities quit using their machines altogether), California (thousands of cases are being reviewed or dismissed because of questionable test results) and Florida, where judges have ruled that a defendant's right to confront his accuser permits defense lawyers to review the computer code that generates the Intoxilizer results.
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    CMI Inc., the Kentucky manufacturer of the machine, continues to ignore subpoenas to turn over the computer code -- a move that has forced prosecutors to hire experts to testify in contested DUI cases.

    Fighting a DUI charge in Massachusetts
    can be done on any number of fronts: Reasonable suspicion for the traffic stop can be questioned, as can the basis for ordering you from the car to request that you submit to field sobriety examinations. And the results of those tests can be challenged -- as can the training and conduct of officers involved. As this issue illustrates, simply challenging your case may be enough to induce the state to offer you a deal to move your case through the system. Discussing your options with an experienced criminal defense attorney at the earliest possible stage of your case is the best option for a successful resolution.

    The Sarasota Herald-Tribune reports the cost is about $3,000 for an expert's flight from Georgia, cost of the hotel, and two days of testimony. That might buy prosecutors resolution on four or five cases -- less than a week's worth. Costs for the year could total $156,000. The five-year battle over the Intoxilizer 8000 has caused prosecutors to drop cases, offer pleas to lesser charges and take other actions to move cases through the system.

    Nor can departments go buy another machine -- the Intoxilier is the only machine approved for use by the Florida Department of Law Enforcement.

    As we recently reported on our Massachusetts DUI Attorney Blog, police in Washington D.C. were told to abandon use of the breathalyzer altogether after a whistleblower came forward to claim the machines were not producing accurate results.

    Instead, police are using urine samples. Defense lawyers and the police union report cases are routinely being dismissed.

    The breathalyzers had not been officially certified and may not have been producing accurate results since 2008.

    In California, the Supreme Court issued a ruling earlier this summer that makes it easier for those charged with drunk driving to challenge breathalyzer results, according to the L.A. Times.

    In the unanimous decision, the court ruled defendants can present evidence to show the breathalyzer failed to accurately reflect blood alcohol levels.

    Continue reading "Breathalyzer Test Results Often Challenged in Massachusetts Drunk Driving Defense" »