Massachusetts Supreme Judicial Court heard oral argument in Commonwealth v. Zeininger regarding admissibility of breathalyzer test results at DUI trial

The Massachusetts Supreme Judicial Court heard oral arguments on February 7, 2011 in the case of Commonwealth v. Zeininger, which was an appeal of a drunk driving conviction out of the Greenfield District Court. The defendants in the case filed an appeal with the Massachusetts Court of Appeals, which the SJC took on its own motion for direct view. As a Massachusetts OUI attorney, this decision could have an important implications for attorney defending drunk driving cases.

The defendant made three challenges to the admissibility of the breathalyzer test results. First, the defendant challenged the evidence presented by the Commonwealth to show that the breathalyzer machine was certified. Under the Massachusetts Supreme Court’s decision in Commonwealth v. Barbeau, 411 Mass. 782 (1992), in order to admit breathalyzer test results into evidence, the Commonwealth has to establish that the machine satisfies both the annual certification and the periodic testing requirements imposed by the Massachusetts regulation and the Barbeau decision.

The Commonwealth did not call a witness to prove the annual certification, but relied on the certification noted in the implied consent form. The implied consent form does not indicate who certified the breathalyzer testing machine. The Commonwealth can request a certification from the Office of Alcohol Testing, but it appears that the Commonwealth relied on the certification on the implied consent form rather than the full Office of Alcohol Testing documents that are certified by the Office of Alcohol Testing.

The defendant on appeal argued that the defendant was being deprived of the right of confrontation guaranteed by the Sixth Amendment to the United States Supreme Court by not being granted the opportunity to confront the witness that certified the machine. The defendant relied on two recent United States Supreme Court decision Crawford v. Washington, 541 U.S. 36 (2004) and Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).

The SJC is likely to use this decision to address how the Commonwealth must prove that the machine has been certified. I would expect the SJC to hold that the Commonwealth needs the certification from the Office of Alcohol Testing at minimum to satisfy the annual certification requirement and cannot simply rely on a notation on the implied consent form that the machine was certified.

As a Massachusetts OUI lawyer, the Commonwealth should be required to call a witness to establish that the machine was certified. However, if the court is going to hold that the certification of the machine is nontestimonial under Crawford, the Commonwealth would still be required to present some evidence of who certified the machine. It appears as though the Commonwealth did not provide reliable evidence that the machine was certified and accordingly the court should have excluded the breathalyzer test results.

A second issue raised by this appeal is whether the trial judge properly allowed the police officer to testify as an expert regarding the breathalyzer machine. In the case, the trial judge allowed the police office over the objection of the defendant to testify that the breathalyzer machine was working properly. The Massachusetts DUI attorney in the case argued that the Commonwealth did not offer the police officer as an expert and that his training was only to give breathalyzer tests and that there was no evidence that he was qualified to determine if the machine was working properly. The defense argued that only a chemist from the Office of Alcohol Testing can determine whether a breathalyzer machine is working properly. Further, defense counsel objected to the officer testifying regarding the ability of the breathalyzer machine to recognize mouth alcohol.

The Massachusetts Supreme Judicial Court should reverse the conviction of the defendant on the grounds that the officer was not qualified to testify regarding the presence or absence of mouth alcohol. In the case, the defendant was found guilty of only the per se prong of Massachusetts drunk driving law as her BAC was just over the legal limit and registered .10. The defendant presented credible evidence during the trial that the defendant had acid reflux which can cause inaccurate breathalyzer readings. The trial testimony was that the defendant spit up acid and spit into the trash can next to the breathalyzer machine.

The final argument made by the defense was that the breathalyzer test should be excluded because the police officer did not comply with the observation period. It appears this is a strong argument. From the argument it appears as though the officer misconstrued the 15 minute waiting period as simply a time period that must elapse so that the breathalyzer can warm up. This misinterprets the purpose of the waiting period and based on the briefs in the case it appeared as though the officer did not testify according to the requirements defined in Massachusetts DUI law as set forth in the case law. The officer must testify that he did not observe any contaminating events and it appears as though the sample may have been contaminated as a result of the defendant spitting up and suffering from acid reflux. This would have contaminated the sample and artificially inflated the defendant’s breath test results.

Overall, I would expect the court to reverse the conviction based on the improper expert testimony of the officer and because a substantial miscarriage of justice did occur as a result of the admission of the breathalyzer test results and the failure to conduct a proper observation period.

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