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Is Breath Test Evidence Admissible in MA OUI Case?

July 9, 2013


Recently Massachusetts DUI Defense lawyers are arguing with some success that breath test results from Massachusetts OUI cases are inadmissible due to an apparent violation of the rules promulgated by the Agency charged with certifying the accuracy and reliability of the breath test device now in use in Massachusetts OUI arrests. The Office of Alcohol Testing (OAT), a division of the Massachusetts State Police, provides and certifies the accuracy of the Massachusetts Breath Testing device (Draeger 9510) to all State Police and Municipal Police Departments. Interestingly, the rules promulgated and written by OAT also require the agency to “create and maintain” a breath test operator’s manual for the newly deployed breath test machine. See Code of Massachusetts Regulations 5.01 CMR 2.04 (f). Historically, OAT provided such a manual for the last deployed breath test device as part of every certified breath test operator’s training. The older device being the recently scrapped Draeger 7110. DUI Defense lawyers relied upon this manual to challenge the accuracy of the breath test evidence and whether the police properly administered the test.

Imagine an auto manufacturer putting a vehicle on the road without an owner’s manual? Imagine any machine placed into the market for use by consumers, a dishwasher, a computer, a medical device, without an owner’s manual. Well, that is what happened when OAT moved to replace breath test devices across the Commonwealth. A highly technical, complicated machine relied upon convert a breath sample into a reliable blood alcohol result and utilized to prove an element of a criminal offense “beyond a reasonable doubt” without an operator’s manual? The new machine replaced the old machine. Why is the new machine better? Why did the old machine, the latest and greatest as of 2005 need to be replaced? The new machine is different in significant ways, including a wholly different calibration mechanism, a dry gas standard, rather than the a liquid simulator standard. The defense of any breath test OUI case requires the accused to prepare for trial by obtaining the manual that explains how the machine works and how a proper testing sequence is administered by the police. Without a manual, written by the government agency charged with providing a valid breath testing device, the defense is left to wonder how the latest device differs from the last device which it replaced and how breath testing sequences are changed.

The government argues that a power point presentation on the new device, provided only to “officers in charge” of the breath test device from each department constitutes an “operator’s manual” in conjuncture with the operator’s manual for the replaced device (Draeger 7510). The manual for the Ford Focus, plus a Power Point presentation on the Mercedes, constitutes an “operator’s manual” for the Mercedes? A hard copy of the power point presentation has a space for the designated trainee to write in notes following each power point slide. How does the defense know what OAT taught the Officers in Charge if they are not present for the power point presentation? Why are the notes from each Officer in Charge’s training provided to the defense?

The issue is not decided. If you are charged with an OUI Offense in Massachusetts be sure to hire a DUI Defense Lawyer prepared to argue the latest issues related to the admissibility of breath test evidence. Attorney Michael S. Bowser, Jr. is a Board Certified DUI Defense Specialist and he is familiar with the wide range of evidentiary issues related to chemical testing for blood alcohol content. The issue described above was first raised and presented to a District Court in Massachusetts by Attorney Steven W. Panagiotes of Fitchburg who is now pursuing an Appellate Court decision on the “operator manual” issue. Through his diligence and hard work an Appellate Court decision will ultimately decide whether a breath test device, utilized to obtain a criminal comviction in Massachusetts should be accompanied by an owner’s manual, just like your toaster!

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