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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.

Field sobriety tests are commonly used in OUI alcohol cases. The Massachusetts Supreme Court will address, in the case of Commonwealth v. Gerhardt, whether these tests are accurate and reliable for when someone is arrested for OUI marijuana in Massachusetts.

The police have been using field sobriety tests to help them form an opinion as to whether someone is under the influence of marijuana. However, there is very little scientific evidence that these tests are accurate and reliable for someone impaired by marijuana. The tests were never studied to determine impairment with marijuana, rather they were studied only in relation to alcohol.

The case before the Massachusetts Supreme Court is going to review studies and literature showing that these tests are not very accurate for when someone is impaired by marijuana.

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When your license is suspended for refusing a breath test in Massachusetts, there is a method to appeal that suspension.  This blog addresses the issue of how you appeal a breath test refusal suspension. This blog addresses the arguments I have used in court to argue that the court should vacate a refusal suspension.  At DelSignore Law, we have had numerous refusal suspensions vacated by the court.

As a Massachusetts OUI attorney, I typically am asked what arguments can be made to challenge a breathalyzer refusal suspension. In my prior post, I outlined the procedure for filing an appeal of a breathalyzer refusal suspension. In this post, I will discuss the arguments I have made before the RMV and in the District Court to attempt to vacate the suspension.

First, I look at the documents to make sure that the officer complied with Massachusetts general laws, Chapter 90 Section 24 in issuing the suspension. To comply with Massachusetts DUI law, the refusal must be witnessed by one other officer in addition to the officer requested the breathalyzer test. Some police officers are not aware of this requirement and I have seen reports of refusal omit this element.

The second issue is whether or not a motorist actually refused a breathalyzer test. In cases where a motorist attempted to submit to a breathalyzer test, but could not register an adequate sample, this raises the issue of whether the motorist constructively refused a breathalyzer test or could not deliver an adequate sample, due to medical conditions or to the condition of the breathalyzer machine.

A third argument, and one I use it every case, is that the report of refusal does not comply with Massachusetts DUI law as it is not signed under the pains and penalties of perjury.

Chapter 90 section 24 provides that a police officer shall “prepare a report of such refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made.”

In every case that I have seen, the report of refusal has no signature of the officer and next to prepared under the pains and penalties of perjury, there is an indication of “Y” to indicate yes.  On some forms, the officer will write yes.  The reports of refusal also has a disclaimer that the registry reserves the right to correct any error or omission in the report of refusal. I have argued before the court that this report does not constitute a report prepared under the pains and penalties of perjury. An officer could not be prosecuted for perjury based on this preprinted form that has no indication that the officer reviewed it or check it for its accuracy.
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