OUI EVIDENCE-BREATH TEST

Massachusetts Supreme Judicial Court Issues OUI Evidence Decision

People pulled over on suspicion of drunk driving should have knowledge of their legal rights when an officer orders a breath test. Breath test machines are like any other machine:  they can malfunction.  Consequentlym, breath test machinessometimes produce false positives, and erroneous blood-alcohol levels can lead to harsh legal consequences. Even if testing shows a result of .08 percent or higher, the driver may be able to successfully challenge a Massachusetts DUI charge.

The Massachusetts Supreme Judicial Court recently issued a major decision regarding a common issue in Massachusetts DUI/OUI cases: whether the breath-analysis device that law enforcement used to test the driver was working properly. A unanimous court rejected an accused drunk driver’s argument that she had a constitutional right to cross-examine the technician who certified the breathalyzer device used in her Massachusetts OUI prosecution.

Assessing the Evidence Behind a Charge of Intoxicated Driving

Because a drunk driving conviction can lead to a suspended driver’s license, high insurance rates, substantial fines and time behind bars, drivers charged with operating under the influence (OUI) must aggressively defend their legal rights. An experienced Massachusetts OUI lawyer can investigate the breath test machine documents to determine if it was working properly when a sample was provided at the time of arrest.  The lawyer can also determine whether the breath test operator followed proper procedures.  If the machine was not working properly or the mandatory procedures were not followed, there may be grounds to have a breath test excluded as evidence in court.

In Commonwealth v. Zoanne Zeininger, the defendant was convicted of operating a motor vehicle with a blood alcohol level of 0.08 percent or greater, and sentenced to a year of probation and a 90-day license suspension. Based on a police officer’s allegation that she failed to come to a complete stop at a flashing red light, Zeininger was pulled over and arrested based on the officer’s observations and field sobriety tests.

Zeininger consented to a breath test at the police station, and two tests registered her blood-alcohol level at .10 percent, slightly above the legal limit. She testified at trial that she had an acid reflux condition and that she had regurgitated prior to blowing into the device. Scientific analysis has shown that some compounds in the breath can inflate a person’s blood-alcohol reading, including those present in mouthwash and inhalants.

Her criminal defense attorney also objected to the admissibility of certification records from the office of alcohol testing (OAT) for the breathalyzer, arguing that Zeininger was denied a right to cross-examine the technician who certified the machine. The so-called confrontation clause of the Sixth Amendment to the U.S. Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against [her].”

Protecting a Client’s Rights at Every Stage of the DUI Legal Process

Zeininger appealed from the District Court verdict, contending that the evidence in question was an exception to the hearsay rules regarding admission of evidence in criminal matters. A defendant has a broad right to question individuals who have knowledge of evidence relevant to the prosecution’s case.

Massachusetts law provides that breathalyzer test results “shall not be considered valid” unless “performed by a certified operator using a certified infrared breath-testing device.” By questioning the technician involved in the certification, a person charged with OUI can raise issues regarding that person’s qualifications or the process used to certify breath test devices. The alternative is to allow that information to simply be verified outside of the criminal justice process.  Considering the breath test results will be used in a court of law, it would make sense that they would be challenged in court.

Unfortunately, the Supreme Judicial Court held that OAT breathalyzer certification records fall under the business records exception to the hearsay rules. Official business records are admissible without testimony from the person who prepared them if made in good faith in the regular course of business prior to the legal proceeding in question. The court rejected Zeininger’s citation of a Massachusetts case that prohibits introduction without the opportunity for cross-examination of evaluative statements made by a government official.

Assembling a Solid Criminal Defense Strategy

Drivers accused of drunk driving are always well advised to seek advice from an experienced Massachusetts DUI/DWI defense attorney to learn about their full range of legal options. Alternative dispositions to a first offense OUI, strategies for obtaining work-related hardship licenses, and the implications of refusing to submit to a breath test are among the factors that various clients may be unaware. An OUI lawyer can also provide information about the Youth Alcohol Program (YAP) and other legal alternatives involving younger drivers.

 

 

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