In a recent blog, I discussed a problematic decision by the Massachusetts Appeals Court in Com. v. Dacosta upholding a defendant’s conviction on the charge of unlawful operation with a BAC of .08 or greater, when the defendant’s BAC level was tested approximately an hour after the traffic stop. In so ruling, the Appeals Court denied the defendant the right to present “retrograde extrapolation” evidence, which may have relieved the defendant of criminal culpability in this case.

The defendant in Dacosta asked the trial judge to require the Commonwealth to present retrograde extrapolation evidence confirming that the defendant’s BAC level did not rise between the time of the stop and the time the breath test was taken. Without such evidence, argued the defendant, no reasonable jury could infer the BAC level at the time the defendant was actually operating the vehicle. And since the jury convicted on a per se charge only, the conviction must be vacated since the Commonwealth failed to establish the defendant’s precise BAC level at the time of operation. You can read the DaCosta decision by following this link.

The doctrine of retrograde extrapolation essentially stands for the scientific phenomenon whereby an individual’s BAC level in the past can be determined from a later measurement by factoring the amount of alcohol consumed, the timing of the consumption, the individual’s weight, and any food he may have eaten while or after he consumed the alcohol. In some instances where the doctrine is applied, the individual’s BAC level at a point in time soon after consumption may be lower than the BAC level later in time. That is because BAC is a measure of the amount of alcohol that is absorbed in the blood at the time it is measured; as time passes, the body (liver) metabolizes and eliminates alcohol absorbed in the blood at a consistent rate, while the rate at which the alcohol is absorbed in the blood may vary depending on the amount of food consumed and the weight of the individual. Therefore, as in the Dacosta matter, the defendant’s BAC may have actually been below the statutory limit at the time of operation an hour earlier than when he was tested, depending on his meal earlier that evening.

A state forensic lab has just announced that it will no longer endorse several of its test results used in the prosecution of DUI cases. The Colorado Department of Public Health and the Environment’s Chief Medical Officer stated last Thursday that the State’s blood test lab will not stand by 33 of the 12000 test results reviewed during the investigation. Experienced defense attorneys may soon take advantage of this breaking news to possibility vacate their client’s OUI convictions or dismiss the charges all together if the prosecution has relied on lab reports released from the state’s lab.

The Department’s Chief Medical Officer sent a letter to a local police chief stating that an internal investigation led to the discovery of an incorrect procedure followed by one of the lab’s employees over the span of 7 months in 2013-2014. According to the letter, this was strictly an isolated incident of human error, and does not effect the results of any other test conducted by the lab.

This news comes less than a year after the criminal sentencing of Annie Dookhan who pleaded guilty to more than two dozen counts of filing false reports, tampering with evidence, and misleading police officers.

A panel of Justices of the Massachusetts Appeals Court heard oral arguments this Thursday, June 5th, on the admissibility of breathalyzer test results where Commonwealth failed to comply with defense counsel’s discovery request for the operator’s manual to the breathalyzer device used. The arguments were raised in the matter of Com. v. Kristopher Cormier (2013-P-1923. This issue is of critical importance for Massachusetts OUI Lawyers as a result for the defendant in this case could result in the suppression of breath test results.

The issue is whether the Commonwealth should be allowed to rely on breathalyzer test results during trial where the test results were offered through a testifying police officer who administered the test, and without allowing defense counsel an opportunity to review the manual in preparing his case for trial.

This case was brought to the Appeals Court on an interlocutory appeal filed by the defendant after a trial judge of the Fitchburg District Court denied the defendant’s motion to suppress the breathalyzer test results.

A California trial judge presiding over the OUI trial of People v. Vangelder was recently affirmed by the California Supreme Court when he prevented a jury from listening to expert testimony on the general unreliability of scientific techniques underlying breathalyzer tests. If appealed to the U.S. Supreme Court, this decision could limit or exclude expert testimony on the scientific unreliability and inaccuracy of breathalyzer tests across all jurisdictions, abolishing what can be a strong defense against an OUI charge.

In the matter of People v. Vangelder, a state officer clocked Vangelder driving late into the night on a speeding on a state highway. After following Vangelder for a few miles without observing any signs of intoxication, the officer pulled Vangelder over to the shoulder of the road. Vangelder was fully compliant with all of the officer’s instructions. After being questioned, Vangelder told the officer that he had three glasses of wine at dinner, and that he was just goofing around on the road.

Vangelder passed all field sobriety tests, and then submitted to preliminary breathalyzer tests. The results came in at 0.095 and 0.086. After Vangelder was arrested (the state limit is 0.08) and transported to the station, he submitted to two more breathalyzer exams which returned a reading of 0.08. Vangelder was charged with two misdemeanors – a generic OUI offense, and the more specific offense of driving with a BAC reading above 0.08 percent – despite the inconsistencies in the BAC readings.

As a Massachusetts OUI attorney, an issue that will arise in many cases will be the accuracy of the breathalyzer machine that displays a driver’s blood alcohol content. One of the main reasons this test is unreliable is because of the partition ratio which is used to convert alcohol on the breath into blood alcohol content. The big problem with this however is that a breathalyzer machine will use a standard partition ratio for every person who blows into the machine. However, the partition ratio may be different for every person which may cause the machine to read a much higher blood alcohol content then is actually present. The Arizona Supreme Court just weighed in on the admissibility of evidence of this partition ratio that is used to make the conversion.

The case of Arizona v. Cooperman had the defendant driver being charged with two drunk driving charges. The first charge was driving while impaired to the slightest degree. The other charge was a per se drunk driving charge meaning the defendant was driving with a blood alcohol of over .08. With this per se charge, all that is needed is to show that the defendant was driving within two hours of blowing the .08. In the impaired driving charge, there is no presumption of intoxication, but the breath test can be used as relevant evidence along with other factors to prove intoxication.

In this case, the Arizona court was ruling on the admissibility of partition ratio evidence and whether it was relevant. The court upheld the evidence and stated the evidence for the partition ratio should be allowed. The state argued that the prosecution was only using the breath test on the second charge of the per se violation and no the impaired driving charge so it was therefore irrelevant. The defendant wanted to introduce this evidence to prove he was not impaired even though the prosecution was only using the breathalyzer test to prove the per se violation. The court allowed the evidence stating that there is a strong correlation between blood alcohol and impairment. The evidence of the partition ratio is relevant as it can show the defendant had a lower blood alcohol content and therefore was not impaired. This evidence is still relevant even though the state was only using the blood alcohol content for the per se violation. The partition ratio could not be used as evidence for the per se violation because the per se violation is based solely on alcohol on the breath and the partition ratio will not come into play.

Unlike under Massachusetts OUI Law, in some jurisdictions, the statutory penalties of driving under the influence vary depending on blood-alcohol measurements as determined by a breathalyzer exam or blood test. While trial courts across the nation are becoming increasingly skeptical of breathalyzers, the Pennsylvania Superior Court recently reversed a trial judge’s decision to dismiss a heightened DUI charge on a finding that breathalyzers are inaccurate. In Massachusetts, the statutory penalties are essentially the same regardless of the breath test results other than for drivers under 21 and other than the additional requirement of an alcohol assessment; of course, a judge is likely to impose a harsher punishment with a higher breath test result.

Last December a trial judge in Pennsylvania rejected a prosecutor’s attempts to prove the defendant, in the case of State v. Schildt, guilty of a heightened DUI statutory charge by presenting results from a breath test as evidence of the defendant having a BAC reading of 0.16 percent. A reading of 0.16 percent or greater qualifies a defendant in Pennsylvania for the maximum penalty under the DUI statute, with increased prison time and fines.

After hearing arguments from both parties, Judge Lawrence Clark Jr. ruled that breathalyzers are not scientifically accurate beyond a 0.15% blood-alcohol reading. Judge Clark Jr. then concluded that without an accurate blood-alcohol reading, the State will not be able to prove beyond a reasonable doubt that the defendant Schildt was so intoxicated so as to qualify him for the heightened statutory sentence. He therefore dismissed the charge.

As a OUI Lawyer , a case will often involve somebody who nhas refused to take a breathalyzer test after being pulled over. In some cases, a motorist may change their mind and request a breath test after refusing to submit to one. In a recent case, the issue was raised is whether a defendant can offer into evidence there request to take a breath test after an initial refusal.

The Massachusetts Supreme Judicial court recently answered this question in Commonwealth v. Jones. In Commonwealth v. Jones, the defendant was pulled over by two police officers after a truck was witnessed driving erratically. The defendant had blood shot eyes, had an open container of alcohol and was stumbling getting out of the car. After performing poorly on the field sobriety test, the defendant was arrested and brought to the police station.

At trial, the defendant made a motion to permit evidence that while at the police station, he originally refused a breathalyzer test but then “shortly afterwards” changed his mind and asked for the breathalyzer. The prosecution argued this had the potential of opening “a can of worms” of evidence that would be allowed and the judge rejected the motion and did not allow the evidence. The defendant was convicted of an OUI after trial.

On appeal, the SJC ruled that the judge at trial acted within the scope of his discretion in not allowing the testimony. The court explained that this evidence could only excuse the defendant to the extent it suggested a conscious innocence at the time of the request. In other words, the defendant had to be requesting the breathalyzer because he felt he was not drunk and it could prove his innocence. The SJC held that there are too many other reasons for the breathalyzer request and was most likely trying to avoid the automatic license suspension. The court felt allowing this evidence may mislead or confuse a jury, complicate the case or prolong the case. The evidence here was not allowed.

In Massachusetts if you are pulled over for an OUI and refuse a breathalyzer test, evidence that you later requested a breathalyzer and were denied is probably not admissible. However the SJC does seem to leave the door open to cases where defendants are requesting the breathalyzer because they consciously believe they are not drunk. The SJC in Commonwealth v. Jones felt he had other motives in requesting the breathalyzer. It may be hard to prove to a court, but if a defendant can in fact prove they were requesting the breathalyzer because they believed they were not above the legal limit of alcohol, that evidence may be admissible. A top OUI lawyer will argue that all potentially exculpatory evidence shall be admitted and that this falls within that category.
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As a Massachusetts OUI attorney, challenges to breath test and blood test evidence based on the 6th Amendment Confrontation must be made in each case as the law continues to evolve in this area. Cases from the United States Supreme Court continue to define the scope of the right of confrontation.

Recently, the New York Appeals Court ruled on the issue of an alleged violation of the “Confrontation Clause” when records for a Breathalyzer test were presented at trial without the verbal testimony of the technicians whom completed the tests.

In State v. Pealer, a police officer stopped the defendant for suspicion of drunk driving. When the defendant failed all sobriety tests, he was arrested. At the station, he failed a Breathalyzer test.