Breathalyzer Defenses

Massachusetts Breathalyzer Defenses

If you took a breath test a blew over a .08, it is wrong to assume that your case cannot be won and you will have to admit to the OUI charge. I have won numerous cases for clients that took a breath test and blew over .08. Breathalyzer test results in a OUI charge will not automatically come into evidence. As Massachusetts OUI Lawyer, I can attach breath test results, by:

  • Filing a Motion to exclude the results from evidence;
  • Retain an Expert to challenge the accuracy of the test results;
  • Show that the result could be under the legal limit given the margin of error of the machine;
  • Presenting medical evidence to show that the results are not accurate in your case as a result of a medical condition you suffer from.

Excluding the breath test from evidence is the most common method of defending a Massachusetts OUI charge with a breath test result above a .08. The Commonwealth must establish that the officer complied with Massachusetts OUI law in administering a breath test. Here are some common grounds of defenses.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

If you took a breath test and failed, make sure you speak to a Massachusetts OUI Lawyer before attempting to resolve the case. Often, the breath test evidence can be successfully challenged.

Key points to Remember if the breath test was over .08:

  • Speak to a lawyer about methods to exclude the breath test or challenge the accuracy of the results;
  • Understand that there is no rush to resolve an OUI charge, in most cases involving a First Offense, if the motion to exclude the breath test is resolved, you will still be able to resolve the case prior to trial and likely receive the same plea offer.
  • Learn the methods to contesting Breath Test Evidence by Downloading his Free Book Understanding Massachusetts Drunk Driving Laws.

Massachusetts Criminal Defense Lawyer Blog - Breathalyzer Testing