Articles Posted in Breathalyzer Testing

Up to 1000 DUI cases in Philadelphia may be impacted by a faulty breath test machine that was not properly calibrated.  What happened in Philadelphia is that an expired solution was used to calibrate the breath test machine.  This error was discovered by a DUI Lawyer likely in preparing one of his cases in order to attempt to have the results excluded at trial.  Gray Hall wrote an article for ABC6 in Philadelphia discussing the problems with the machine and notes that the police department were quick to say that the machine was working properly and that is was human error.

In Massachusetts, we are in the process of our own litigation over the accuracy of the breath test machine. Over 700 cases have been stayed awaiting the resolution of the litigation in the Concord District Court which concerns the following issues:

  1. Is the Computer Program, known as the source code, scientifically reliable?

The U.S. Supreme Court ruled on Thursday that states cannot make it a crime for a drunken driving suspect to refuse to take a blood test but can criminalize the refusal to take breath tests to determine alcohol levels.  The ruling will affect laws in 11 states.  The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests.  The court considers breath tests less intrusive than blood tests, hence no need for a warrant.  The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution’s ban on unreasonable searches and seizures.  Other states that have criminalized a driver’s refusal to take alcohol blood or breath tests include Alaska, Florida, Indiana, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.

Implied consent laws make the assumption that by driving on a state’s roads, you are deemed to have consented to testing if you are suspected of drunk driving.  All fifty states have imposed some form of implied consent laws.  Many states have tough laws if a driver is found to be driving under the influence.  These tough laws have created a problem of their own: drivers, particularly those who have had a lot to drink or have prior drunk driving convictions, may opt to refuse the tests, because the consequences of doing so may be less severe than what they would face if convicted of drunk driving. This dilemma led the eleven states mentioned above to create statutes that make refusing alcohol testing a crime.

Alcohol testing is a physical trespass search within the meaning of the Fourth Amendment, and therefore it must fall within a Fourth Amendment exception in order to be conducted without a warrant.  The Court ruled two years ago in a case involving the search of an arrestee’s cellphone, courts should instead look at the extent to which the search intrudes on the privacy of the person who is being arrested, as well as the extent to which the search is needed to promote “legitimate governmental interests.”  The Court today held that there is no real physical intrusion from the breathalyzer test, and that keeping drunk drivers off of the street is a legitimate government interest.By contrast, the Court concluded today, blood tests do not pass constitutional muster to be conducted without a warrant.  Although they too help promote “legitimate government interests,” they are “significantly more intrusive” than breath tests: they require the technician taking the sample to pierce the driver’s skin, extracting a sample that provides law enforcement officials with more information than a breath test.

The Statewide challenge to the accuracy of the breath test machine used in Massachusetts took a positive turn for the defense with a ruling from Massachusetts Supreme Court Justice Botsford.

The Massachusetts Supreme Judicial Court ruled that defendants in a set of cases should be provided access to breathalyzer instruments and the necessary related materials to permit dynamic testing to be performed. The defendants in the cases of Commonwealth v. Figuereo and Commonwealth v. Ananias challenged the scientific reliability of the alcohol breath test results produced by a model of breathalyzer used throughout the Commonwealth, the Alcotest 9510. In both sets of cases, a Daubert-Lanigan hearing is anticipated, and this decision is an effort to define the scope of discovery relating to the defendant’s challenges to the reliability of the Alocotest’s breath test results.

The defendants have been permitted to conduct both static and dynamic testing of the Alcotest in relation to their anticipated hearings. Static testing involves analyzing the “source code” used in manufacturing the instruments and tailoring them to meet Massachusetts specifications. The “source code” of the breath test, and most computerized devices, is the code written by computer programmers when they develop the software that runs the machine. As the source code is written by programmers that created the breath test, having access to that code allows defense attorneys to have the code analyzed by a programming expert to determine whether the machine has any errors or faults.

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Neary-French v. Massachusetts last week to decide the question of whether a defendant should be advised of his or her right to counsel prior to making the decision of whether or not to submit to a breathalyzer test. The 2003 amendment to G.L.c. 90, §24 created the “.08 or greater” per se theory by which an OUI offense can be proven. Because a breathalyzer test can result in per se proof, the decision whether or not to submit to the test becomes a critical stage in conviction for an OUI. A critical stage is one in which the defendant’s rights could be sacrificed or lost. Before the 2003 amendment, the right to counsel did not attach because the Court did not consider the test a ‘critical stage’ in the criminal process and the assistance of counsel would create an undue delay in the administration of the test. There were reasonable safeguards in place to protect the defendant’s right. The 2003 amendment removed defendant’s safeguards and caused the breathalyzer to become a critical stage in the criminal process because the outcome of the test could possibly be the sole basis of a conviction.

Counsel for the defense illustrated what the process would look like if the right to counsel were afforded. When a person is pulled over for suspicion of driving under the influence, they are immediately taken into physical custody. When they get to the station, they are then booked, a process that can take up to an hour. There is ample time to allow the defendant the right to consult with their attorney before the decision to submit to a breathalyzer test. There is concern about the dissipation of alcohol while the defendant is waiting on their lawyer. However, so long as the defendant is afforded the opportunity to place a call to a lawyer shortly after they arrive at the station, there will be a reasonable window of opportunity for the lawyer to advise their client without interference in the test process.

Courts in other states have held that the right to counsel attaches to the decision to submit to a breathalyzer test, including Oregon, South Dakota, Texas, Vermont, and New York. All of these states have found that the right to counsel before a breathalyzer test is guaranteed under the Sixth and Fourteenth Amendments. It is not enough that a suspect in custody is given their Miranda rights, as Miranda only applies to testimonial evidence. The decision to submit to a breathalyzer is a critical stage in the process of conviction for an OUI and should be treated as such. The right to counsel should attach to ensure a safeguard for defendants before they make the decision that could produce direct evidence against them.

Massachusetts Supreme Judicial Court Justice Botsford heard oral argument today relating to the Statewide challenge to the Alcotest breath test machine used to prosecute drunk driving cases in Massachusetts.  She heard appeals in the two challenge to the breath test source code, one arising from the Concord District Court and the other arising out of the Boston Municipal Court.

From the argument it appears as though Justice Botsford will rule in the following way:

Justice Botsford indicated she would try to find a way to consolidate the two cases as it does not make financial or practical sense to have two hearings challenging the breath test machine.  Further, she asked both sides if they could live with the protective order drafted by Judge McManus.  The defense indicated that all clients in the Concord litigation would prefer to have their case consoidlated with the Boston litigation.  Additionally, Justice Botsford asked if the defense expert would sign the protective order drafted by Judge McManus. The defense indicated he would sign it.  In contrast, the defense expert refused to sign the protective order drafted by Judge Brennan who is presiding over the Concord breath test litigation.

The Massachusetts Supreme Judicial Court will hear argument in two cases relating to the statewide challenge to the reliability of the Alcotest 9510. The first case is an appeal from the Concord District Court, where over 500 OUI cases have been consolidated pending the challenge to the reliability of the Alcotest 9510.

This hearing arose from the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Camblin, holding that defendants in an OUI case are entitled to challenge the scientific reliability of the breath test machine. The Camblin decision applied to the old machine, the Alcotest 7110. In the Camblin decision, the SJC identified issues that could impact the reliability of the machine.

The Kansas Supreme Court held in State v. David Lee Ryceheld that DUI tests are a search, and therefore a police officer is required to have a warrant if the driver does not consent to a test. Kansans can no longer be criminally prosecuted for refusal to take a breathalyzer or blood test without a warrant. The ruling also held that implied consent is not irrevocable and that withdrawal of consent cannot be criminally punished. Under Kansas law, anyone who operates a motor vehicle is considered to have given implied consent to DUI testing. The statute is facially unconstitutional, the court said, because it punishes the defendant for exercising his or her constitutional right to refuse the test.

The 4th Amendment of the Constitution of the United States starts with “the right of the people to be secure in their persons…” and cannot be searched without a warrant. Breathalyzers and blood tests are a search that invades a person’s privacy in the way that they are intrusive to what is actually going on within a person. Drivers who refuse a DUI test may still be required to submit to one of a warrant is obtained, but their Constitutional right to be secure in their persons will now be upheld.

However, even though drivers who refuse to take a DUI test may not be criminally charged, there are still civil punishments in place for refusal. Drivers are still in danger of fines or losing their licenses. While a few extra steps may be involved, following constitutional requirements still leaves the state with significant weapons to deal with those who refuse DUI tests.“While not all drivers without licenses will refrain from driving, the state may theoretically seek a warrant for an alcohol test and enact criminal penalties, including jail time, for refusing to submit to a valid Fourth Amendment search,” the court writes.

The Massachusetts Supreme Judicial Court will hear the case of Neary-French v. Massachusetts over whether a defendant should be advised of his or her right to counsel prior to making the decision of whether or not to submit to a breathalyzer test. The 2003 amendment to G.L.c. 90, §24 created the “.08 or greater” per se theory by which an OUI offense can be proven. The SJC will have to decide whether or not the decision to take a breath test is a critical stage of the criminal proceeding, as defendants are entitled to be advised of their right to counsel prior to making any decisions in the critical stages of a criminal proceeding.  Recently, Bob McGovern of the Boston Herald wrote an Article about this case and how it has prosecutors concerned.

In Massachusetts, in order to support a prima facie case for an OUI, the prosecution must prove three elements: (1) that the defendant was in physical operation of the vehicle; (2) that the defendant did so on a public way or place to which the public has a right of access; and (3) had a measurable blood alcohol content percentage of .08 or greater, or was impaired by the influence of intoxicating liquor. Before the 2003 amendment, the jury could draw a permissible inference that the defendant was under the influence at the time of the offense if the BAC was .08 or higher. The 2003 amendment adopted the per se theory that a defendant with a BAC level of .08 or higher is now considered to be legally intoxicated under the law, regardless of the level of impairment.

A critical stage is one in which the defendant’s rights could be sacrificed or lost. Before the 2003 amendment, the right to counsel did not attach because the Court did not consider the test a ‘critical stage’ in the criminal process and the assistance of counsel would create an undue delay in the administration of the test. There were reasonable safeguards in place to protect the defendant’s right. The 2003 amendment removed defendant’s safeguards and caused the breathalyzer to become a critical stage in the criminal process because the outcome of the test could possibly be the sole basis of a conviction.

The results of a sobriety test, such as the Breathalyzer or blood test, frequently play a crucial role in the outcome of a drunk driving case. When assessing how reliable the sobriety test results may have been, it is important to consider the medical background of the client and any conditions that may have impacted their results.

Scientific evidence shows that weight loss surgeries, such as the gastric bypass, can cause a a significant increase in blood alcohol content for someone stopped and arrested for DUI – for several reasons. 

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