Ways to win Breathalyzer cases: Breathalyzer cases are often won by excluding the breathalyzer from evidence at trial. If the breathalyzer cannot be excluded, the reliability of the results can be attacked, the margin of error of the machine and the relevance of the reading to the time of driving.

Under Massachusetts law, the Commonwealth has the burden of proving several elements before the judge will admit the breathalyzer test into evidence. Accordingly, even if you failed the breathalyzer, your case is still defensible as the breathalyzer results may be excluded from evidence and never heard by the jury.

A major case decided recently by the United States Supreme Court, Melendez-Diaz v. Commonwealth, may result in breathalyzer evidence being excluded from evidence as this case will require the Commonwealth to provide live testimony in order to establish the evidentiary foundation for admitting the breathalyzer into evidence.

Burden on the Commonwealth to admit breathalyzer evidence: Before a breathalyzer reading can be admitted into evidence the Commonwealth must be able to show that the proper procedures were followed when administering the test to you and must produce documents showing that the breathalyzer machine you were tested on was working properly.

These requirements are that you:

1. Consented to take a breathalyzer test
2. that the officer informed you of your right to refuse the breathalyzer test.
3. The officer advised you of your right to an independent medical exam and your right to a telephone call.
4. That the officer observed you for 15 minutes prior to administering the breathalyzer test.
5. That the Government can prove that the machine was properly tested and certified for accuracy by the Office of Alcohol Testing and that the operator of the breathalyzer machine was also properly certified.

Methods of excluding the breathalyzer from evidence:

DEFENSE OF 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. If you did not voluntarily agreed to take the breathalyzer test, then it is possible a court will find that your consent was not voluntary and exclude the test from evidence in your case.

CERTIFICATION AND PERIODIC TESTING
Prior to admitting breathalyzer evidence, the Commonwealth must show that the breathalyzer machine was periodic tested. The periodic testing documents can be obtained through the discovery process and could show problems or errors with the machine. 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.

15 MINUTE WAITING PERIOD
The Commonwealth must also show that the officer complied with the testing method of the Office of Alcohol Testing in administering the breathalyzer test. This can be the source of successful defenses. One important requirement is that the breathalyzer operator observe a motorist accused of OUI/DUI 15 minutes prior to administering any breathalyzer 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 contaminated the breath sample.

TWO ADEQUATE SAMPLE
A suspect must provide two adequate samples for the breathalyzer to be admissible in court. This requires that the two samples agree within .02 of each other.

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.

Contact (508) 455-4755 today to set up a free consultation with Massachusetts criminal defense lawyer Michael DelSignore.

Michael DelSignore offers criminal defense services to clients living throughout Massachusetts, including Attleboro, Stoughton, Quincy, Dedham, Wrentham, Fall River, Taunton, Boston, New Bedford, Brookline, Brighton, Avon, Canton, North Attleboro, Mansfield, and Seekonk.