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Articles Posted in Breathalyzer Testing

For the past two years, there has been extensive litigation about the reliability of the breath test.  Judge Brennan consolidated all issues pertaining to the accuracy of the breath test in one hearing.  Judge Brennan rejected all challenges to the scientific reliability of the machine, but found that the Office of Alcohol Testing did not have reliability procedures to conduct the annual certification.  As a result he presumptively excluded two years of breath testing between 2012 and September 2014.

Some district attorneys office did not attempt to admit the results; while others, pursuant to the decision attempted to have the Office of Alcohol testing overcome the presumption of exclusion by testifying that they followed a reliability procedure at the time.   In an article in the Boston Herald, by Bob McGovern discusses a motion that was recently filed to be heard by Judge Brennan that could result in exclusion of thousands of breath tests.

Following the litigation, attorneys continued to review the documents provided by the Office of Alcohol Testing to determine if all data was provided.  Thomas Workman an expert of breath testing, reviewed the documents and discovered that the Office of Alcohol Testing did not provide all worksheets.  Workman filed Freedom of Information Requests and discovered that all worksheets were not provided pursuant to Judge Brennan’s order.  A motion filed in Concord District Court alleged that 89% of the withheld worksheets were exculpatory.  The defense is arguing that by failing to provide the worksheets, that the Commonwealth undermined the ability of the defense to challenge the reliability of the breath test machine.  The litigation took 2 weeks of court time and was a substantial cost to tax payers.  To have evidence withheld that was ordered to be produced undermines the integrity of the Court process and litigation.  I would expect Judge Brennan to schedule an evidentiary hearing to determine why the worksheets were not produced.  This would involve further testimony by the Office of Alcohol Testing and possibly the district attorneys involved in handling the litigation.

It was a partial victory for Massachusetts OUI Lawyers as the judge overseeing the Stateside breath test litigation, ruled that the breath results shall be excluded if the machine was calibrated prior to September 14, 2014, based on lack of standards and procedures for conducting the annual certification.  The Judge found that the lack of written guidelines and documented notes regarding how the machines were certified means that the Court could not find that these breath tests results were scientifically reliable.  The Judge found that since there were not standard procedure for calibrating the machines, that the court could not find that it was done properly based on the testimony from the Office of Alcohol Testing that procedures were followed in an informal way and were followed despite lack of documentation.  The Court found that the Commonwealth did not provide evidence that OAT had a reliable lie way to calibrate the breath test device as part of the annual certification prior to September 14, 2014 when it promulgated the Certification and Calibration Procedures.  Accordingly, the judge held that any breath test device certified prior to September 14, 2014 cannot be said to be scientifically reliable.  The judge did leave open the possibility that the Commonwealth could demonstrate to a judge that a particular machine was accurately calibrated.

While this aspect of the ruling was in favor of the defense, the Judge sided with the Commonwealth on the major challenges to the breath test.  The judge found that the Alcotest source code was scientifically reliable, rejecting numerous challenges by the defense to its accuracy.  Since the judge’s findings regarxines the credibility of witnesses was a factual finding, the Massachusetts Supreme Judicial Court would likely give those findings deference and uphold the trial judge.

Breath test cases in Massachusetts have been stayed since the litigation began in August of 2015.  The split ruling may make an appeal less likely, though I would still expect an appeal.  Since the judge’s ruling does not impact pending cases and hold that the machine is reliable, the ruling excluding breath test results is limited to a confined number of cases. I think the SJC would uphold the decision as the portion excluding the results was based on a complete lack of evidence of certification procedures.  The judges in the district court have been anxious to get the breath test cases resolved; and did not seem to be contemplating months more of delay in this litigation.

When is a person being investigated of a crime entitled to a lawyer?

The determination of whether someone being accused of a crime is entitled to a lawyer depends on whether the court determine that the prosecution is at a critical stage in the process. The United States Supreme Court in a case called Kirby v. Illinois, ruled that the Sixth Amendment right to counsel does not attach until the state beings the adversarial process against an individual. The Court defined this as a formal charge, preliminary hearing, indictment or arraignment. The Massachusetts Supreme Judicial Court, interpreting Article 12 of our State Constitution declined to adopt a more expansive view of when the adversarial process beings. The Court found that because the decision whether to take a breath test arises before a formal complaint it issued, that there is no right to counsel under the Sixth Amendment.

The SJC stated that the decision whether to take or refusal a breath test is an important tactical decision, but that because this decision occurs at the evidence gathering stage it is not a critical stage in the process. The Court affirmed that its decision in Commonwealth v. Braelton is still good law despite the change to Massachusetts OUI laws with the per se offense.

Up to 1000 DUI cases in Philadelphia may be impacted by a faulty breath test machine that was not properly calibrated.  What happened in Philadelphia is that an expired solution was used to calibrate the breath test machine.  This error was discovered by a DUI Lawyer likely in preparing one of his cases in order to attempt to have the results excluded at trial.  Gray Hall wrote an article for ABC6 in Philadelphia discussing the problems with the machine and notes that the police department were quick to say that the machine was working properly and that is was human error.

In Massachusetts, we are in the process of our own litigation over the accuracy of the breath test machine. Over 700 cases have been stayed awaiting the resolution of the litigation in the Concord District Court which concerns the following issues:

  1. Is the Computer Program, known as the source code, scientifically reliable?

The U.S. Supreme Court ruled on Thursday that states cannot make it a crime for a drunken driving suspect to refuse to take a blood test but can criminalize the refusal to take breath tests to determine alcohol levels.  The ruling will affect laws in 11 states.  The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests.  The court considers breath tests less intrusive than blood tests, hence no need for a warrant.  The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution’s ban on unreasonable searches and seizures.  Other states that have criminalized a driver’s refusal to take alcohol blood or breath tests include Alaska, Florida, Indiana, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.

Implied consent laws make the assumption that by driving on a state’s roads, you are deemed to have consented to testing if you are suspected of drunk driving.  All fifty states have imposed some form of implied consent laws.  Many states have tough laws if a driver is found to be driving under the influence.  These tough laws have created a problem of their own: drivers, particularly those who have had a lot to drink or have prior drunk driving convictions, may opt to refuse the tests, because the consequences of doing so may be less severe than what they would face if convicted of drunk driving. This dilemma led the eleven states mentioned above to create statutes that make refusing alcohol testing a crime.

Alcohol testing is a physical trespass search within the meaning of the Fourth Amendment, and therefore it must fall within a Fourth Amendment exception in order to be conducted without a warrant.  The Court ruled two years ago in a case involving the search of an arrestee’s cellphone, courts should instead look at the extent to which the search intrudes on the privacy of the person who is being arrested, as well as the extent to which the search is needed to promote “legitimate governmental interests.”  The Court today held that there is no real physical intrusion from the breathalyzer test, and that keeping drunk drivers off of the street is a legitimate government interest.By contrast, the Court concluded today, blood tests do not pass constitutional muster to be conducted without a warrant.  Although they too help promote “legitimate government interests,” they are “significantly more intrusive” than breath tests: they require the technician taking the sample to pierce the driver’s skin, extracting a sample that provides law enforcement officials with more information than a breath test.

The Statewide challenge to the accuracy of the breath test machine used in Massachusetts took a positive turn for the defense with a ruling from Massachusetts Supreme Court Justice Botsford.

The Massachusetts Supreme Judicial Court ruled that defendants in a set of cases should be provided access to breathalyzer instruments and the necessary related materials to permit dynamic testing to be performed. The defendants in the cases of Commonwealth v. Figuereo and Commonwealth v. Ananias challenged the scientific reliability of the alcohol breath test results produced by a model of breathalyzer used throughout the Commonwealth, the Alcotest 9510. In both sets of cases, a Daubert-Lanigan hearing is anticipated, and this decision is an effort to define the scope of discovery relating to the defendant’s challenges to the reliability of the Alocotest’s breath test results.

The defendants have been permitted to conduct both static and dynamic testing of the Alcotest in relation to their anticipated hearings. Static testing involves analyzing the “source code” used in manufacturing the instruments and tailoring them to meet Massachusetts specifications. The “source code” of the breath test, and most computerized devices, is the code written by computer programmers when they develop the software that runs the machine. As the source code is written by programmers that created the breath test, having access to that code allows defense attorneys to have the code analyzed by a programming expert to determine whether the machine has any errors or faults.

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Neary-French v. Massachusetts last week to decide the question of whether a defendant should be advised of his or her right to counsel prior to making the decision of whether or not to submit to a breathalyzer test. The 2003 amendment to G.L.c. 90, §24 created the “.08 or greater” per se theory by which an OUI offense can be proven. Because a breathalyzer test can result in per se proof, the decision whether or not to submit to the test becomes a critical stage in conviction for an OUI. A critical stage is one in which the defendant’s rights could be sacrificed or lost. Before the 2003 amendment, the right to counsel did not attach because the Court did not consider the test a ‘critical stage’ in the criminal process and the assistance of counsel would create an undue delay in the administration of the test. There were reasonable safeguards in place to protect the defendant’s right. The 2003 amendment removed defendant’s safeguards and caused the breathalyzer to become a critical stage in the criminal process because the outcome of the test could possibly be the sole basis of a conviction.

Counsel for the defense illustrated what the process would look like if the right to counsel were afforded. When a person is pulled over for suspicion of driving under the influence, they are immediately taken into physical custody. When they get to the station, they are then booked, a process that can take up to an hour. There is ample time to allow the defendant the right to consult with their attorney before the decision to submit to a breathalyzer test. There is concern about the dissipation of alcohol while the defendant is waiting on their lawyer. However, so long as the defendant is afforded the opportunity to place a call to a lawyer shortly after they arrive at the station, there will be a reasonable window of opportunity for the lawyer to advise their client without interference in the test process.

Courts in other states have held that the right to counsel attaches to the decision to submit to a breathalyzer test, including Oregon, South Dakota, Texas, Vermont, and New York. All of these states have found that the right to counsel before a breathalyzer test is guaranteed under the Sixth and Fourteenth Amendments. It is not enough that a suspect in custody is given their Miranda rights, as Miranda only applies to testimonial evidence. The decision to submit to a breathalyzer is a critical stage in the process of conviction for an OUI and should be treated as such. The right to counsel should attach to ensure a safeguard for defendants before they make the decision that could produce direct evidence against them.

Massachusetts Supreme Judicial Court Justice Botsford heard oral argument today relating to the Statewide challenge to the Alcotest breath test machine used to prosecute drunk driving cases in Massachusetts.  She heard appeals in the two challenge to the breath test source code, one arising from the Concord District Court and the other arising out of the Boston Municipal Court.

From the argument it appears as though Justice Botsford will rule in the following way:

Justice Botsford indicated she would try to find a way to consolidate the two cases as it does not make financial or practical sense to have two hearings challenging the breath test machine.  Further, she asked both sides if they could live with the protective order drafted by Judge McManus.  The defense indicated that all clients in the Concord litigation would prefer to have their case consoidlated with the Boston litigation.  Additionally, Justice Botsford asked if the defense expert would sign the protective order drafted by Judge McManus. The defense indicated he would sign it.  In contrast, the defense expert refused to sign the protective order drafted by Judge Brennan who is presiding over the Concord breath test litigation.

The Massachusetts Supreme Judicial Court will hear argument in two cases relating to the statewide challenge to the reliability of the Alcotest 9510. The first case is an appeal from the Concord District Court, where over 500 OUI cases have been consolidated pending the challenge to the reliability of the Alcotest 9510.

This hearing arose from the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Camblin, holding that defendants in an OUI case are entitled to challenge the scientific reliability of the breath test machine. The Camblin decision applied to the old machine, the Alcotest 7110. In the Camblin decision, the SJC identified issues that could impact the reliability of the machine.

The Kansas Supreme Court held in State v. David Lee Ryceheld that DUI tests are a search, and therefore a police officer is required to have a warrant if the driver does not consent to a test. Kansans can no longer be criminally prosecuted for refusal to take a breathalyzer or blood test without a warrant. The ruling also held that implied consent is not irrevocable and that withdrawal of consent cannot be criminally punished. Under Kansas law, anyone who operates a motor vehicle is considered to have given implied consent to DUI testing. The statute is facially unconstitutional, the court said, because it punishes the defendant for exercising his or her constitutional right to refuse the test.

The 4th Amendment of the Constitution of the United States starts with “the right of the people to be secure in their persons…” and cannot be searched without a warrant. Breathalyzers and blood tests are a search that invades a person’s privacy in the way that they are intrusive to what is actually going on within a person. Drivers who refuse a DUI test may still be required to submit to one of a warrant is obtained, but their Constitutional right to be secure in their persons will now be upheld.

However, even though drivers who refuse to take a DUI test may not be criminally charged, there are still civil punishments in place for refusal. Drivers are still in danger of fines or losing their licenses. While a few extra steps may be involved, following constitutional requirements still leaves the state with significant weapons to deal with those who refuse DUI tests.“While not all drivers without licenses will refrain from driving, the state may theoretically seek a warrant for an alcohol test and enact criminal penalties, including jail time, for refusing to submit to a valid Fourth Amendment search,” the court writes.

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