Massachusetts DUI Attorney Blog

The admissibility of breathalyzer evidence in Massachusetts DUI cases may depend upon how the courts apply the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts. The Melendez-Diaz case held that the Commonwealth cannot convict a defendant of a crime where the Government relies on an affidavit to prove an element of the offense without, providing the defendant with an opportunity to confront any witness against a defendant by cross examination.

The application of this rule to DUI cases in Massachusetts involving breathalyzer testing is working its way through the courts. The issue was address in a Virginia case, Grant v. Commonwealth on September 1, 2009.

In Grant, the Virginia Court of Appeals ruled that a trial judge improperly allowed a breathalyzer test to be admitted into evidence without the live testimony of the officer that conducted the test. In Massachusetts, the Commonwealth would generally call the officer that conducted the breathalyzer test as a witness. Based on United States Supreme Court case law, and reaffirmed by Grant, is that the Government must call the breathalyzer operator as a witness.

The case suggests a further requirement on the Government, which may result in breathalyzer evidence being excluded in Massachusetts DUI cases. The court states that once the legislature sets forth by statute how breathalyzer evidence is to be admitted in a DUI trial, then the Commonwealth must prove those facts by live testimony. Under Massachusetts OUI law, the Commonwealth must prove that the breathalyzer machine complies with the annual certification and the periodic testing requirement. Generally, the Commonwealth relies on an affidavit from the Office of Alcohol Testing to prove compliance with the annual certification and periodic testing requirements of the law. The Grant case suggests that live testimony is necessary to prove compliance with the foundation requirements to admit breathalyzer evidence. Accordingly, a Massachusetts DUI lawyer may be able to exclude breathalyzer evidence under the reasoning of the Grant case.