Massachusetts Criminal Defense Lawyer Blog A blog for lawyers looking to improve trial skills and to learn recent case law relating to DUI and Criminal Defense

Articles Posted in Breathalyzer Testing

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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In 2008, the New Jersey Supreme Court decided, New Jersey v. Chun, which was the first case where the Court addressed whether the source code of the Alcotest 7110 was scientifically reliable. This is the leading case on the issue of the source code. Massachusetts OUI Lawyers are currently conducting a similar hearing for the newer Alcotest machine the 9510. In this Blog, we will review the findings of the Chun case as the decision will have an impact on how the judge rules in the Consolidated appeal being heard in the Concord District Court.  Currently, the Source code reliability hearing is scheduled for March 14 and is scheduled to take until March 17th.

One of the major differences between Chun and the current hearing in Massachusetts, is that the hearing in Concord involves a different machine, the Alcotest 9510, which has a much more complex source code than the Alcotest 7110.  There is currently a hearing in the Ayer District Court on the 7110 machine; this hearing will effect fewer cases as many case involving the 7110 have been resolved; however, it could result in new trial motions being filed should the court find the source code unreliable.

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The Massachusetts Supreme Judicial Court will decide whether evidence of an unsuccessful attempt to take a breath test was properly admitted into evidence, given the language barrier between the defendant and arresting officer.

A non-English speaking woman is arrested for DUI and fails to pass the Breathalyzer – but is the language barrier a valid defense? 952313_gavel

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

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

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

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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.

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.

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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.

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.

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.