The admissibility of breathalyzer evidence was alternated when the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Colturi, 448 Mass. 809 (2007). In Colturi, the court held that the Commonwealth does not have to produce expert testimony to prove that the defendant's blood alcohol at the time of driving is the same as at the time of the test as long as the breathalyzer testing is done within a reasonable period of time after the operation. The court held that three hours would generally be a reasonable time, but allowed for the possibility that a shorter period should apply depending on each individual case.
A case from Mississippi recently raised issues similar to those litigated in Colturi. In a Mississippi case, State v. Evans, that will be decided by the Mississippi Supreme Court, the defendant registered a .09 just above the legal limit of .08. The defendant was stopped at 12:50 am and not given a breathalyzer test until 1:58 am according to news accounts. The court refused to allow the defendant to present retrograde extrapolation evidence that the defendant was below the legal limit at the time of operation. Given that the issue with any breathalyzer is whether it accurate reflects the blood alcohol content at the time of driving, the judge appears to be incorrect in precluding the defendant from offering the evidence and presenting a defense. The court of appeals reversed the trial judge and the case will be heard by the State's highest court.
Massachusetts DUI law under Colturi should not preclude a defendant from offering evidence proving that the blood alcohol level was lower at the time of driving. Though Colturi held that the Commonwealth does not have to present this evidence to prove a violation under the per se law, that case does not bar a DUI attorney from presenting this defense before a jury.
In a case involving a .09 breathalyzer, an OUI lawyer would want to consider whether a margin or error defense would be more effective, given that the machine has a margin of error that could put the reading below .08. Additionally, if field sobriety tests show that the defendant was coordinated and had good balance, an attorney could argue that there is a conflict or disconnection between the breathalyzer evidence and the officer's observations that should cause a jury to distrust the reliability of the machine.
Michael DelSignore is a DUI lawyer practicing throughout Massachusetts, and appears in Quincy, Boston and Stoughton District Courts. Attorney DelSignore will explain your DUI defense, details the possible license consequences of an DUI conviction and begin to prepare your defense regarding of whether it is your first, second or third offense DUI. Call today for a free consultation.
