Massachusetts DUI Attorney Blog

Authorities in Florida are facing higher costs of prosecuting DUI offenders because of questionable breath test results and aggressive defense of clients tested by the Intoxilizer 8000.

Massachusetts DUI defense attorneys know how unreliable breathalyzer tests can be. Currently, high-profile examples include Washington D.C. (authorities quit using their machines altogether), California (thousands of cases are being reviewed or dismissed because of questionable test results) and Florida, where judges have ruled that a defendant's right to confront his accuser permits defense lawyers to review the computer code that generates the Intoxilizer results.

CMI Inc., the Kentucky manufacturer of the machine, continues to ignore subpoenas to turn over the computer code -- a move that has forced prosecutors to hire experts to testify in contested DUI cases.

Fighting a DUI charge in Massachusetts can be done on any number of fronts: Reasonable suspicion for the traffic stop can be questioned, as can the basis for ordering you from the car to request that you submit to field sobriety examinations. And the results of those tests can be challenged -- as can the training and conduct of officers involved. As this issue illustrates, simply challenging your case may be enough to induce the state to offer you a deal to move your case through the system. Discussing your options with an experienced criminal defense attorney at the earliest possible stage of your case is the best option for a successful resolution.

The Sarasota Herald-Tribune reports the cost is about $3,000 for an expert's flight from Georgia, cost of the hotel, and two days of testimony. That might buy prosecutors resolution on four or five cases -- less than a week's worth. Costs for the year could total $156,000. The five-year battle over the Intoxilizer 8000 has caused prosecutors to drop cases, offer pleas to lesser charges and take other actions to move cases through the system.

Nor can departments go buy another machine -- the Intoxilier is the only machine approved for use by the Florida Department of Law Enforcement.

As we recently reported on our Massachusetts DUI Attorney Blog, police in Washington D.C. were told to abandon use of the breathalyzer altogether after a whistleblower came forward to claim the machines were not producing accurate results.

Instead, police are using urine samples. Defense lawyers and the police union report cases are routinely being dismissed.

The breathalyzers had not been officially certified and may not have been producing accurate results since 2008.

In California, the Supreme Court issued a ruling earlier this summer that makes it easier for those charged with drunk driving to challenge breathalyzer results, according to the L.A. Times.

In the unanimous decision, the court ruled defendants can present evidence to show the breathalyzer failed to accurately reflect blood alcohol levels.

Continue reading "Breathalyzer Test Results Often Challenged in Massachusetts Drunk Driving Defense" »

Washington D.C. police and prosecutors will have to wait a year to have what they believe is a reliable and accurate breath-testing program, The Washington Post recently reported.

Breathalyzers haven't been used in about a year, according to the article, because inaccuracies from miscalibrated equipment had overstated breath-test scores in about 400 convictions dating back to 2008.

This is just another example of how bad breathalyzers are and how their inaccuracies have caused harm to drivers who weren't drunk but who were penalized. As Massachusetts DUI Attorney Blog has pointed out, breathalyzer testing is inherently inaccurate. But police continue to use them to try to secure OUI convictions in Boston.

According to the article, the absence of a breath-test program contributed to a drop of about 42 percent in drunk driving arrests by district police. Officials have said drunken driving prosecution has "stalled" because police have been using more cumbersome methods, such as urine samples and roadside sobriety testing, to make arrests. Even a local medical examiner office toxicologist said alcohol levels registered through urine testing have "very little correlation to blood concentrations for alcohol."

According to a web page by a State University of New York at Potsdam professor emeritus, a breathalyzer can only "estimate" a person's blood-alcohol concentration. Only a sample of the person's blood can "measure" a person's blood-alcohol content. And while blood testing is considered to be accurate, breath testing can be manipulated by breathing heavily, lightly, eating certain foods on top of operator error and miscalculated machines.

In Massachusetts, a driver who refuses a breathalyzer test automatically has their driver's license suspended for 180 days, pending an appeal, which must be made within 15 days of your arrest. The hearing is held at the Massachusetts Registry of Motor Vehicles in Boston, regardless of where the offense occurred. for those with prior OUI convictions, a breathalyzer refusal after one prior conviction requires a three-year license suspension, five years after two priors and a lifetime suspension after three prior convictions.

But refusing a breath test denies the Commonwealth a potentially large piece of evidence against you. If prosecutors are unable to use breath testing to convince a jury the driver was drunk, they must rely solely on the officer's testimony, which is sometimes faulty.

If a breathalyzer test isn't refused, it should be fought in court. An officer not telling the driver they have a right to an independent medical exam, not allowing for a 15-minute observation period to have breathalyzer testing admitted into evidence and prosecutors not having proper documentation to show the machine is reliable are all reasons a Massachusetts OUI Lawyer can win cases in Massachusetts.

Continue reading "Washington D.C. DUI Program Shows Problems With Breathalyzer Testing in Boston, Elsewhere" »

Attorneys in Upstate New York are arguing with New York State Police why information about a breath-alcohol analysis machine with glitches in 2009 was never revealed to DUI defendants or their attorneys, the Observer-Dispatch reports.

New York is not alone in its problems with bad breathalyzer testing, Massachusetts DUI Attorney Blog reported in May. Many states have had breathalyzer testing come back far above what the actual blood-alcohol content of the driver was. But sometimes the driver has already been convicted based on the wrong information. This is why hiring an experienced Attleboro DUI defense attorney can make the difference between justice and injustice. Between keeping a drunk driving conviction off your record or setting yourself up for the much stiffer penalties that can come with a repeat violation.

According to the news article, a Utica-area attorney is challenging why information about a flaw in Drager Alcotest 9510 machines was never revealed in court. And he's now asking for maintenance records from the state that they won't turn over.

"How many people are in state prison now throughout the state that never had a chance to know that the machine they blew into potentially had a problem," Leonard said recently. "District attorneys continue to prosecute defendants on machines they know potentially have a problem, and the defendants never had an opportunity to put that issue in front of the jury."

In 17 cases in 2009, the machines had error messages that revealed a defect in one of the two tests used to measure a driver's blood-alcohol level through their breath. State police told prosecutors that even in an error, the machine would kick out readings that were lower than was acceptable, not higher. Without proof, Leonard told the newspaper, the words are meaningless.

Sadly, these types of cases are far from rare and are cropping up time and time again all over the country. From Vermont to Philadelphia across the nation to California, prosecutors are having to review cases and even throw away convictions because of poorly managed and illegitimate breathalyzer testing.

That's why it is so important for people charged with DUI in Boston to consult with an experienced DUI defense lawyer who can challenge breathalyzer results with aggression.

While refusing a breathalyzer test in Massachusetts can result in at least a 180-day driver's license suspension, it keeps from the Commonwealth potentially incriminating evidence. But driver's license suspensions can be fought within 15 days or a hardship license can be obtained with an experienced Massachusetts OUI attorney.

Which attorney you hire is the most important decision you make after being arrested for DUI. Fight the charge, but don't fight it alone.

Continue reading "NY Attorneys Fighting State Over Breath Analysis Machine Could Affect Massachusetts OUI Cases" »

A Massachusetts OUI charge with failed breathalyzer test results is a case that can be won at trial. A recent Florida case provides a good example of what is referred to as the disconnect defense in drunk driving cases.

In the Sarasota case, the Government presented evidence of a breathalyzer test result of .10 that was allowed to be entered into evidence. The DUI lawyers in the case of Felicia Bridwell attacked the reliability of the test results by demonstrating problems with the breathalyzer machine and by showing a video that did not depicted a woman under the influence of alcohol.

In Massachusetts, when video tape evidence or a motorist's performance on field sobriety tests are inconsistent with breathalyzer test results, A Massachusetts drunk driving lawyer can argument to the jury to trust their own judgment over that of an unreliable machine. This defense is referred to as the disconnect defense because there is a gap between the observations and evidence that the jury can see and the results of the machine. At most OUI trials with breathalyzer test results, the jury learns little about the machine other than the results of the test and is essentially being asked to trust the machine.

Continue reading "Winning your Massachusetts OUI charge with failed breathalyzer test results" »

The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Zoanne Zeininger which addressed the issue of whether the Sixth Amendment requires the Commonwealth to present the live testimony of a witness from the Office of Alcohol Testing in order to admit breathalyzer test results at a Massachusetts DUI trial. Click here to read in SJC decision in Zeininger.

At trial, the Massachusetts OUI attorney, argued that the Office of Alcohol Testing documents could not be admitted into evidence without the live testimony of a witness from OAT in order to preserve the defendant's right of confrontation under the Sixth Amendment and the recent case of Melendez-Diaz v. Massachusetts. At a DUI trial, the Commonwealth generally subpoenas a packet of documents from the OAT that show compliance with the annual certification and periodic testing requirements of Massachusetts drunk driving law. The Commonwealth generally seeks to admit these documents into evidence as business records without live testimony from the Office of Alcohol Testing. The Zeininger case raised the issue of whether this practice satisfied constitutional requirements.

The Massachusetts Supreme Judicial Court held that the court undergoes a two part inquiry to determine whether out-of-court statements are admissible at a criminal trial. First, it determines whether the statement is admissible under a hearsay evidence exception and second whether it satisfies the requirements of the Confrontation Clause of the Sixth Amendment.

The SJC held that the OAT documents are made by a public official having a statutory duty to comply with a rigorous regulatory certification. The Court held that these records do not express any opinion but memorialize routine scientific measurements. Further, the court stated that the records qualify as business records because they were not created essentially for use in court, but pursuant to the mandates of Massachusetts statutes creating the regulatory scheme. Accordingly, the court held that the records are admissible under Massachusetts evidence law.

The SJC also rejected challenges to the admissibility of the OAT records based on the Sixth Amendment Confrontation Clause. The SJC held that the Oat records are not made for the purpose of proving some fact at trial but to comply with its statutory mandate.

As a Massachusetts OUI lawyer, the court's decision is contrary to the United States Supreme Court's Melendez-Diaz decision as the only purpose for the OAT records is to establish the reliability of the breathalyzer test at trial. But for the fact that breathalyzer results are used in court, there would be no purpose for the records or testing of the machine. Accordingly, the Court 's suggestion that the records are not prepared primarily for trial is simply incorrect.

Additionally, the SJC's claim that the records the records memorialize routine scientific measurements is inconsistent with the language of Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009) which held that the Confrontation Clause is essential to ensure the reliability of scientific procedures in court. The SJC ignores the language of the Supreme Court in Melendez-Diaz by suggesting that the OAT testing procedure is simple so that confrontation is not required.

As a Massachusetts DUI lawyer, the court's decision and reasoning is incorrect and contrary to the requirements of the Confrontation Clause as set forth in the United States Supreme Court case law. The United States Supreme Court is expected to release its decision in Bullcoming v. New Mexico by the end of the terms, which may undermine the SJC reasoning in Zeininger.

Continue reading "Massachusetts DUI lawyer comments on recent case regarding admissibility of breathalyzer test results " »

The Boston Globe reports that hundreds of Vermont DUI cases could be in jeopardy because Vermont State Police may not have properly set up a machine that analyzes breath testing.

It isn't shocking to Massachusetts OUI defense attorneys that authorities continue to have problems with breath testing. We believe breathalyzers are one of the weakest forms of DUI evidence -- problems are being uncovered from coast to coast.

As recently discussed on the Massachusetts DUI Attorney Blog, hundreds of cases in California are being reviewed because of a manufacturing error. In Philadelphia, more than 1,000 cases are being reviewed because of botched breath test results. There are many defenses to Boston OUI cases and often breath testing is one of the best.

The Globe reports that whistleblowers are also bringing up complaints about unethical lab work in the Vermont cases. The problem comes from the Department of Health's maintenance of the machines that are used at police stations and barracks to test drivers arrested for suspected drunken driving. In this case, the problem may be human error that resulted in a machine operating for a year without a self-check function that assures proper functioning.

The story highlights the two problems with these tests: the possibility of human error and the likelihood of technical error. The technology behind the breathalyzer and the training of the officers involved are a continuous source of court challenges by Boston defense attorneys. Those facing a drunk driving charge in Boston and throughout Massachusetts should consult an attorney who can properly challenge these tests.

A breathalyzer is a machine that officers often ask drivers to blow into to get readings about the driver's blood alcohol level. In Massachusetts, the legal limit is .08. The machines give readings based on the person's breath.

While we often take technology for granted and usually trust that it is operating correctly, that isn't the case in DUI cases involving breathalyzers. These tests should be vigorously challenged in court. Boston OUI breath test results, if challenged successfully, can be the difference between a win and loss at trial.

Continue reading "Bad Breathalyzers Show Up in Vermont, is Massachusetts Next?" »

Nearly a 1,000 drunk driving defendants could go free in California amid reports of a faulty breathalyzer machine, the Mercury News reported.

Massachusetts OUI defense attorneys understand the breath test results are far from a sure thing. Coast to coast, the technology behind the breathalyzer and the training of the officers involved are a continuous source of court challenges. Those facing a drunk driving charge in Boston or elsewhere in Massachusetts should consult an experienced attorney to discuss their options.

As we reported previously on our Massachusetts DUI Attorney Blog, botched breath test results in Philly have compromised more than 1,000 cases. Faulty breath test results in D.C. are forcing the district to change the type of machine it uses; and a Florida judge has ruled a breathalyzer manufacturer must release the code used in the machine to defense attorneys who wish to challenge the validity of results.

In the California case, the Santa Clara district attorney's office is taking a month to review the cases it will drop as a result of police officers' use of the Alco-Sensor V breathalyzer. The machines were subject to faulty readings because of a manufacturer's error.

Officers had begun using the device in November and used it exclusively through the busy holiday season. They stopped this month after discovering that Ventura County authorities were reviewing hundreds of cases for errors. Defense lawyers say cases in which suspects blew into the device but later refused to give a blood test are now suspect -- since the state's main piece of evidence may be compromised.

Authorities had been using 60 of the defective devices. The devices were portable breathalyzers, the results of which are not typically used in court. However, California law allows the readings to be used if further testing at the station is refused. Santa Clara County arrests more than 7,000 motorists each year for DUI.

Continue reading "More Drunk Driving Cases Dumped as Faulty Breathalyzer Testing Uncovered" »

A Rhode Island lawmaker has been charged with driving under the influence and possession of marijuana and drug paraphernalia after being stopped at a DUI checkpoint in Connecticut, Channel 12 News reported.

A Massachusetts criminal defense lawyer has more ground upon which to challenge charges that result from a car stop at a sobriety checkpoint. These stops infringe upon your Fourth Amendment rights to be free from unreasonable search and seizure.

Massachusetts sobriety checkpoints and law enforcement roadblocks in Connecticut are permitted under state law, though law enforcement must obey strict rules regarding the checkpoint's operation to ensure everyone is treated equally. The training of officers involved, the probable cause to request that you submit to field sobriety testing or a breathalyzer examination and the probable cause for any search of your vehicle or person are all issues a defense attorney may challenge in defending a client charged as a result of a DUI checkpoint.

Roadblocks in Rhode Island have been deemed unconstitutional and are not permitted under the state constitution.

House Minority Leader Robert Watson, R-East Greenwich-West Greenwich, was among those arrested Friday at a checkpoint in East Haven Connecticut. NBC 10 News reports Watson is expected to keep his leadership position despite the arrest after Republican House members voted unanimously to support him.

Watson denied failing the field sobriety tests and stated that he wished there were cameras. In many cases, a driver charged with DUI in Massachusetts will dispute the version of the police contained in the police report. Many motorists are upset when reading the police which often is inaccurate, exaggerates what occurred and distorts innocent activity to justify the arrest. According to the police report, the officer observed only three clues on the nine step walk and turn out of a total of eight clues. While the officer concluded Watson failed, his DUI lawyer will be able to use this test to show that he had normal balance, coordination and mental ability given the substantial number of things he did correct in performing the test.

The Providence Journal reported Watson was flagged over while driving his Ford Ranger. Police report that he smelled of alcohol and marijuana. A bag of suspected marijuana and a wood pipe were found upon a search of the vehicle.

A test of his blood-alcohol level at the station was .05, below the legal limit of .08. However, the presence of marijuana could complicate the case as prosecutors could argue he was driving under the influence of drugs as well as alcohol.

In Massachusetts, there is a presumption that a driver is not under the influence if a breathalyzer reading is .05 or below. If the breathalyzer reading is .06 or .07, the Commonwealth may still charge a motorist with DUI and will proceed under an impairment theory. Most cases of under .06 and .07 result in not guilty verdicts after a bench trial. However, when there is allegations of driving under the influence of drugs, the Commonwealth may charge OUI drugs in the alternative.

Continue reading "Rhode Island Legislator Charged with Drunk Driving, Possession of Marijuana, at Sobriety Checkpoint" »

As a Massachusetts DUI attorney, the inaccurate breath testing system discovered last year in Washington DC is of interest because it underscores that breathalyzer test results, can be inaccurate and breath test cases can be won in court. Last year it was reported that the old breathalyzer testing equipment in Washington DC was inaccurate, resulting in many drunk driving conviction being based on inaccurate test results.

The District of Columbia has resorted to using urine testing as the breathalyzer testing system has not been replaced as the District could not determine who will run testing program.

Under Massachusetts drunk driving law, the Office of Alcohol Testing is responsible for maintaining and testing breathalyzer devices throughout the Commonwealth of Massachusetts. Problems with accurate breathalyzer test results in Washington DC and Philadelphia underscore the need to hire an experienced Massachusetts DUI lawyer to defend your case even if you failed a breathalyzer test result. Click here to read about inaccurate test results in Philadelphia.

Continue reading "Inaccurate Breathalyzer machines still not fixed in Washington DC" »

Botched breath tests compromised evidence in more than 1,000 Philadelphia drunk driving cases, the Inquirer reported.

We have reported here before on the importance of challenging the results of a breathalyzer examination when fighting a Massachusetts OUI charges. Drunk driving defense lawyers in Massachusetts and elsewhere continue not only to challenge the result of individual breath results, but the very technology upon which such testing relies.

-Recently we wrote on our Massachusetts DUI Attorney Blog about the importance of challenging mobile breathalyzer results at DUI roadblocks. And we previously reported on the problems with breathalyzer results in Philadelphia.

-Fox News reports Washington D.C. police are not introducing the results in court as the city switches to a new machine it believes offers better, more reliable results.

-The Burlington Times News recently reported a North Carolina judge has refused to allow defense attorneys access to the computer code upon which the area's breathalyzer machine operates. Defense attorneys nationwide continue to argue that failure to permit a defendant access to the code denies a person charged with drunk driving the ability to confront his or her accuser.

-In Minnesota, a judge ruled the state's Intoxilyzer results work well enough to be used in court, but acknowledged limitations of the machine's source code. Minnesota is replacing the machines with new technology, Fox News reported.

-And, as the St. Petersburg Times reports, Florida attorneys continue to fight for the release of the computer code used to operate machines in that state. As the Times reported:

"The technology has evolved over 73 years, but it's more vulnerable to legal challenge than ever. Partly because of doubts about the Intoxilyzer, prosecutors have struggled to get convictions in some counties. Judges in two counties won't even allow Intoxilyzer evidence."

In the Philly case, city officials admitted that an improperly calibrated machine compromised evidence in 1.147 cases -- raising the distinct possibility that many of those cases could be dismissed. Those convicted in cases from September 2009 to November of last year can request a new trial.

The city's response: "We screwed up, folks."

At issue is the fact that four of the police department's eight breathalyzer machines gave false readings about whether a defendant's blood-alcohol level was above the legal limit of .08.

This case is just one more illustration of why it is critical to consult a criminal defense lawyer whenever you are facing drunk driving charges in Massachusetts or elsewhere.

Continue reading "Philly case illustrates importance of challenging breathalyzer results in Massachusetts OUI arrests" »

As a Massachusetts DUI lawyer, the police often use mobile breathalyzer units during sobriety checkpoints. These mobile breathalyzer units referred to as the BAT mobile are taken to the scene of a Massachusetts DUI roadblock or sobriety checkpoint. The use of BAT mobiles is common in Massachusetts and throughout the country.

If you are charged with drunk driving in Massachusetts, it is important to consider hiring an experience lawyer to defend your case. If you took a breathalyzer at a mobile Breathalyzer unit, there may be numerous defenses to the scientific reliability of these results. When the police move a breathalyzer machine to a new area, no thought is given to factors that may compromise the results such as radio frequency interference and other environmental factors that may compromise the test results. Breathalyzer test results can be challenged and the first step to winning a case with breathalyzer test results is to call an experienced DUI lawyer. Attorney DelSignore is available any time to answer your questions at 508-455-4755 or 781-686-5924 or by email.

Breathalyzer machines in Massachusetts do not always produce accurate results. There are many ways an experienced Massachusetts DUI lawyer can challenge breathalyzer test results and exclude the results from evidence and being heard by a judge or jury.

The problem with the unreliability of breathalyzer testing results can be seen in a recent report in Fox News from Philadelphia where motorists may receive new trials based on a malfunction with the breathalyzer machine.

A breathalyzer is a machine like any other machine that you people use daily. Any complex machine can have malfunctions and errors. If you are charged with DUI in Massachusetts, call Attorney DelSignore at 508-455-4755 and let him explain the flaws and inaccuracies in breathalyzer machines.

The Attorney General for the District of Columbia has been forced to drop dozens of drunk driving cases because of inaccurate breathalyzer results, The Examiner reported.

We frequently write about the need to contact an experienced Massachusetts OUI defense lawyer when facing drunk driving charges. Breathalyzer tests in Massachusetts can frequently be challenged, along with the results of field sobriety tests. Successfully challenging evidence often results in a reduction or dismissal of the charges.

A host of issues are involved in determining the proper administration of a breathalyzer examination, including whether a client burped or has stomach indigestion, whether the machine is properly maintained and calibrated, and whether the officer has received proper training.

The Examiner reports D.C. prosecutors are dropping drunk driving charges because of a problem with the city's breathalyzer. The results have not been admissible in D.C. courtrooms since February 2010, when it was revealed the results were inaccurate. Defense attorneys contend the District Attorney is dropping charges rather than revealing the results of an investigation into the conduct to two police officers who were responsible for a third of the city's 1,400 annual drunk driving arrests.

A review of 25 dismissed cases found one of the officers made the arrest in each instance. A union chief said it was those two officers who brought the breathalyzer issues to the forefront and that they are being targeted as a result.

Earlier this month, police in D.C. stopped using the breath analyzers to test BAC levels because the medical examiner's office won't certify the results. Police are using urine samples instead.

D.C. politicians are jumping into the fray, voicing frustration that the system has been broken for more than a year.

Continue reading "D.C. case illustrates Breathalyzer issues in Massachusetts OUI cases" »

Nancy Kerrigan's brother, Mark Kerrigan, had his bail of $ 25, 000 revoked as he was alleged to have failed four breathalyzer tests with reading below the legal limit. The breathalyzer test reading ranged from .025 to .036. Kerrigan had his bail revoked because the court found that he violated the terms of his pretrial release by not remaining alcohol free. The defendant claimed that the failed breathalyzer test results were the result of taking cough syrup.

With readings at such a low level of .025 and .036, Kerrigan's claim could be correct that he failed the breathalyzer test as a result of consuming cough syrup. To prove this claim Kerrigan will present testimony that he was sick at the time of the breathalyzer test results. According to Denise Lavoie's Article for the Associated Press, the judge may reconsider his decision if Kerrigan Massachusetts DUI lawyer can prove that the defendant was sick, requiring him to take cold medication.

Kerrigan Massachusetts OUI attorney plans to test the cough syrup for its alcohol content and to present the result to the court along with an affidavit from her client stating that he did not consume alcohol.

Continue reading "Nancy Kerrigan's brother claims consuming cough syrup caused failed breathalyzer test results in violation of pretrial conditions " »

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.