Massachusetts Breathalyzer Defenses
Ways to win Breathalyzer cases: Breathalyzer cases are often won by excluding the breathalyzer from evidence at trial.
Attorney DelSignore has been very successful excluding breathalyzer test results from evidence and has several reason court victories despite failed breathalyzer test results. There are several ways to have breathalyzer evidence excluded at your trial.
- Failure of the police officers to conduct a proper observation period. Under Massachusetts OUI law, a breathalyzer test can only be admitted at trial if the police officer observes the motorist for 15 minutes period to administering the test. The purpose of the 15 minute waiting period is to ensure that the OUI/DUI suspect does not burp, regurgitate, belch or have stomach ingestion that would contaminate the breath sample. Often, the police do not conduct a proper observation period and Attorney DelSignore has successfully used the lack of a proper observation period to exclude breathalyzer test results.
- Lack of consent. The Commonwealth must prove that you voluntarily agreed to take the breathalyzer test. In order to find your consent voluntary, the Commonwealth will have to prove that you were informed of the penalties and consequences of refusing the breathalyzer.
- Right to independent medical exam. Massachusetts OUI law provides that the police must advise an OUI suspect of the right to have an independent medical exam to establish blood alcohol content. The failure of the police to notify you of this right can result in breathalyzer test results being excluded from evidence and may even result in the entire case being dismissed.
- Failure of the Commonwealth to admit documents showing that the breathalyzer machine has been tested for reliability. The Commonwealth must present documents showing that the machine passed the annual certification and has been periodically tested. Prior to admitting breathalyzer evidence, the Commonwealth must show that the breathalyzer machine was periodic tested. The periodic testing requirement mandates that the breathalyzer machine be tested once per year on five different solutions of known alcohol concentration. If the machine passes these tests, it will be considered a certified machine.
- Disconnect between the observation and breathalyzer evidence. In some cases, the individual does not appear under the influence but the breathalyzer results are above the legal limit. A motorist demonstrating normal balance, coordination and communication skills presents characteristics inconsistent with someone under the influence of alcohol and may call into question the reliability of the breathalyzer test results.
- Results made available to the defendant. After completion of the breathalyzer test, the suspect must be informed of the test results and advised of the lower of the two test results.
Do not assume your case cannot be won because the police claim you failed the breathalyzer test. This case still can be won. Call to discuss your case and defenses, 508-455-4755 or 781-686-5924.
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