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 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.

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 Massachusetts Supreme Judicial Court will hear the case of Neary-French v. Massachusetts over 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. The SJC will have to decide whether or not the decision to take a breath test is a critical stage of the criminal proceeding, as defendants are entitled to be advised of their right to counsel prior to making any decisions in the critical stages of a criminal proceeding.  Recently, Bob McGovern of the Boston Herald wrote an Article about this case and how it has prosecutors concerned.

In Massachusetts, in order to support a prima facie case for an OUI, the prosecution must prove three elements: (1) that the defendant was in physical operation of the vehicle; (2) that the defendant did so on a public way or place to which the public has a right of access; and (3) had a measurable blood alcohol content percentage of .08 or greater, or was impaired by the influence of intoxicating liquor. Before the 2003 amendment, the jury could draw a permissible inference that the defendant was under the influence at the time of the offense if the BAC was .08 or higher. The 2003 amendment adopted the per se theory that a defendant with a BAC level of .08 or higher is now considered to be legally intoxicated under the law, regardless of the level of impairment.

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.

Lowering the legal limit should be rejecting as punishing social drinking; it would not have any impact on reducing serious DUI accidents as these are not being caused by individuals with breath test results under .08.

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The results of a sobriety test, such as the Breathalyzer or blood test, frequently play a crucial role in the outcome of a drunk driving case. When assessing how reliable the sobriety test results may have been, it is important to consider the medical background of the client and any conditions that may have impacted their results.

Scientific evidence shows that weight loss surgeries, such as the gastric bypass, can cause a a significant increase in blood alcohol content for someone stopped and arrested for DUI for a variety of reasons. 

The health risks and associated conditions of obesity are well documented in the media- from diabetes to cancer, overweight individuals often turn to high intensity exercise programs and extreme dieting in their attempts to lose weight. Although this works for some, many people may see no improvement with their new lifestyle practices and still struggle to lose weight. Such people may turn to weight-loss surgery. Weight-loss surgery is relatively common, the most notable being the gastric bypass. This surgery aims to shrink the stomach in an attempt to aide the patient in loosing weight. Although this surgery carries the risks associated with any surgery, it is relatively safe and has helped many people lose vast amounts of weight. However, few people may know of one risk relating to this surgery that is potentially dangerous – alcoholism.