Breath Test evidence in Massachusetts excluded for cases prior to September 14, 2014 while Judge finds the Breath Test Scientifically Reliable

It was a partial victory for Massachusetts OUI Lawyers as the judge overseeing the Stateside breath test litigation, ruled that the breath results shall be excluded if the machine was calibrated prior to September 14, 2014, based on lack of standards and procedures for conducting the annual certification.  The Judge found that the lack of written guidelines and documented notes regarding how the machines were certified means that the Court could not find that these breath tests results were scientifically reliable.  The Judge found that since there were not standard procedure for calibrating the machines, that the court could not find that it was done properly based on the testimony from the Office of Alcohol Testing that procedures were followed in an informal way and were followed despite lack of documentation.  The Court found that the Commonwealth did not provide evidence that OAT had a reliable lie way to calibrate the breath test device as part of the annual certification prior to September 14, 2014 when it promulgated the Certification and Calibration Procedures.  Accordingly, the judge held that any breath test device certified prior to September 14, 2014 cannot be said to be scientifically reliable.  The judge did leave open the possibility that the Commonwealth could demonstrate to a judge that a particular machine was accurately calibrated.

While this aspect of the ruling was in favor of the defense, the Judge sided with the Commonwealth on the major challenges to the breath test.  The judge found that the Alcotest source code was scientifically reliable, rejecting numerous challenges by the defense to its accuracy.  Since the judge’s findings regarxines the credibility of witnesses was a factual finding, the Massachusetts Supreme Judicial Court would likely give those findings deference and uphold the trial judge.

Breath test cases in Massachusetts have been stayed since the litigation began in August of 2015.  The split ruling may make an appeal less likely, though I would still expect an appeal.  Since the judge’s ruling does not impact pending cases and hold that the machine is reliable, the ruling excluding breath test results is limited to a confined number of cases. I think the SJC would uphold the decision as the portion excluding the results was based on a complete lack of evidence of certification procedures.  The judges in the district court have been anxious to get the breath test cases resolved; and did not seem to be contemplating months more of delay in this litigation.

While not a complete victory for the defense, there has not been a court to find the source code unreliable.  A similar challenge was rejected in State v. Chun in New Jersey.  The judge’s ruling was very well reasoned and would be difficult to overturn on appeal.  However, there may be more challenges resulting from this litigation.  The hearing involved two weeks of testimony and defense lawyers may find other issues based on the testimony to follow in individual cases.  To discuss this case and breath test evidence in Massachusetts, feel free to call Attorney DelSignore at 781-686-5924 or visit his Facebook page for DelSignore Law which has updates on drunk driving laws.

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