For Massachusetts OUI lawyers, the recent decision of the Pennsylvania Superior Court may be used to challenge the admissibility of breath test results in Massachusetts.

In the recent case of Commonwealth v. Schildt, the defendant’s Attorney Justin McShane argued that the breath test machine was incapable of producing accurate and reliable results outside a linear range of .05 to .15. This argument was made because Pennsylvania does not test its breath test machine for accuracy outside of those values. The victory in the case by Attorney McShane was the results of years of dedication to understanding the science of involved in DUI cases which has made him one of the leading DUI lawyers in the United States.

Pennsylvania law, like Massachusetts OUI law has a provision that any breath test result over .08 results in a presumption that the individual is under the influence of alcohol. This is considered a per se violation because if the breath test results is admitted into evidence and deemed reliable, there is a presumption of impairment.

Motorists in Washington D.C. may again face police departments armed with breathalyzers, following a two-year hiatus connected to inflated results that led to dozens of faulty convictions.

Our Massachusetts DUI lawyers understand that the previous machines were producing readings that were, on average, about 20 percent too high. About two dozen of those convicted sued the city, and received a settlement of about $130,000. Hundreds more convictions have been called into question.

Metro Police say they have addressed the issues, but we would argue that no machine is every guaranteed 100 percent of the time. That’s a serious issue because those arrested and convicted of a DUI may serve jail time, lose their jobs and be compelled to pay heft fines. Breathalyzer results are often the key piece of evidence used in convictions.

Police say one of the reasons they have taken their time before re-implementing the breathalyzer program was that they wanted to ensure the program they had in place would be scientifically viable and able to hold up in court. However, we anticipate further legal challenges, particularly given the tougher DUI penalties that the city council approved over the summer. The measures were formally adopted Aug. 1.

Among those changes:

• Jail time has doubled for someone who has a blood-alcohol level of between 0.20 percent and 0.24 percent. It has gone from five days to 10 days.
• For someone who is arrested with a blood alcohol content of 0.25 percent or higher, the minimum jail sentence has been bumped to 15 days.
• Drivers who are deemed drunk with a child in the vehicle now face a minimum of five days in jail, with minimum fines more than tripling, from $300 to $1,000.
• Maximum DUI sentences have doubled, from a three months to six months.
• Commercial drivers, those behind the wheel of taxis or trucks, can be prosecuted for a DUI if they have a blood alcohol content over 0.04 percent (below the regular legal limit for everyone else, which is 0.08 percent).

Although these measures are only in place for D.C. motorists, those in neighboring states or who travel frequently to the city should take note. It’s illustrative of a trend throughout New England: law enforcement and lawmakers continue to work together to make laws tougher on those convicted of driving under the influence of alcohol or drugs.

Breathalyzers are frequently used by law enforcement agencies, both in Massachusetts and throughout the country, in DUI cases, and have been for years. During that time, numerous legal challenges have been raised regarding their accuracy.

For example, just this year in San Francisco, it was learned that the police department there had not been regularly testing the accuracy of breathalyzer machines. As such, hundreds and possibly thousands of DUI convictions handed out over the last six years could be overturned.

The problem is in the way these devices are designed. They measure the blood alcohol level as it can be found on your breath. This is essentially an estimate, and not an exact measure of what is in your blood. Plus, breathalyzers are designed to measure your BAC based on the average person. So your metabolism, sex, height and weight – which can each have an effect on whether are not you are actually intoxicated – are not taken into account.
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As a Massachusetts OUI Attorney, the recent decision of the United States Supreme Court has importance consequences in defending drunk driving case involving blood and breath test evidence. The Williams v. Illinois decision is noteworthy as to how divided the court was in its reasoning finding that the defendant’s Sixth Amendment rights were not violated. The decision was a 5-4 decision that could impact the admissibility of blood and breath test results for individuals charged with DUI in Massachusetts.

In Williams v. Illinois, the United States Supreme Court issued a decision on the Sixth Amendment Confrontation Clause that makes the Court’s interpretation of this Constitutional provision unclear and confuses this area of law for criminal defense lawyers, prosecutors and trial judges. In this 5-4 decision, 4 justices in what is referred to as the Plurality joined the decision of Justice Alito and Justice Thomas concurred separately in the judgment.

In the Williams case, the State called an expert witness who testified that a DNA profile produced by an outside laboratory, matched a profile produced by the state police lab using a sample of the defendant’s blood. The defendant contended that the expert’s testimony violated the defendant’s right of confrontation when the expert testified that the DNA profile provided by the laboratory was produced from semen found on the victim’s vaginal swab.

Authorities in Florida are facing higher costs of prosecuting DUI offenders because of questionable breath test results and aggressive defense of clients tested by the Intoxilizer 8000.

Massachusetts DUI defense attorneys know how unreliable breathalyzer tests can be. Currently, high-profile examples include Washington D.C. (authorities quit using their machines altogether), California (thousands of cases are being reviewed or dismissed because of questionable test results) and Florida, where judges have ruled that a defendant’s right to confront his accuser permits defense lawyers to review the computer code that generates the Intoxilizer results.

CMI Inc., the Kentucky manufacturer of the machine, continues to ignore subpoenas to turn over the computer code — a move that has forced prosecutors to hire experts to testify in contested DUI cases.

Fighting a DUI charge in Massachusetts can be done on any number of fronts: Reasonable suspicion for the traffic stop can be questioned, as can the basis for ordering you from the car to request that you submit to field sobriety examinations. And the results of those tests can be challenged — as can the training and conduct of officers involved. As this issue illustrates, simply challenging your case may be enough to induce the state to offer you a deal to move your case through the system. Discussing your options with an experienced criminal defense attorney at the earliest possible stage of your case is the best option for a successful resolution.

The Sarasota Herald-Tribune reports the cost is about $3,000 for an expert’s flight from Georgia, cost of the hotel, and two days of testimony. That might buy prosecutors resolution on four or five cases — less than a week’s worth. Costs for the year could total $156,000. The five-year battle over the Intoxilizer 8000 has caused prosecutors to drop cases, offer pleas to lesser charges and take other actions to move cases through the system.

Nor can departments go buy another machine — the Intoxilier is the only machine approved for use by the Florida Department of Law Enforcement.

As we recently reported on our Massachusetts DUI Attorney Blog, police in Washington D.C. were told to abandon use of the breathalyzer altogether after a whistleblower came forward to claim the machines were not producing accurate results.

Instead, police are using urine samples. Defense lawyers and the police union report cases are routinely being dismissed.

The breathalyzers had not been officially certified and may not have been producing accurate results since 2008.

In California, the Supreme Court issued a ruling earlier this summer that makes it easier for those charged with drunk driving to challenge breathalyzer results, according to the L.A. Times.

In the unanimous decision, the court ruled defendants can present evidence to show the breathalyzer failed to accurately reflect blood alcohol levels.
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The Massachusetts Court of Appeals, in the case of Commonwealth v. Rumery, decided February 4, 2011, issued a decision regarding the margin of error of the breathalyzer at Massachusetts DUI trials. The court ruled that a defendant is not entitled to a jury instruction that the breathalyzer has an inherent margin of error of .01. The defendant sought this instruction because when the Office of Alcohol testing tests a breathalyzer devise for accuracy, the machine is considered accurate as long as the machine can read a solution with a known alcohol content within a range of plus or minus .01. The court held that the .01 does not represent any specific margin of error of any particular machine. The court noted that the Commonwealth contended that the margin of error is much smaller and the court appeared to accept that finding. It is unclear how the court can accept that finding given that the Office of Alcohol Testing does not require such precision when it is testing the machine for accuracy pursuant to the periodic testing mandated by Massachusetts DUI law.

The court also stated that the margin of error has already been accounted for as a result of taking the lower of the two samples. Finally, the court held that if an instruction on a margin of error were mandated, it would require complex expert testimony on the margin of error of each machine.

In the case before the court, the defendant’s breathalyzer reading was at the legal limit of .08; accordingly, the accuracy of the machine is central to the issue as the machine is determining whether the defendant is guilty of the offense of drunk driving. The Commonwealth should be required to prove the margin of error of the machine in case with readings at or near the legal limit.

As a Massachusetts OUI attorney, this decision will not have a major impact on the defense of breathalyzer cases near the legal limit as the court only held that a jury instruction was not required. A defendant is still permitted to argue that the margin of error of the breathalyzer machine is .01 based on how the Commonwealth conducts its periodic testing. Additionally, a defense lawyer can present other evidence that impacts the margin of error of the breathalyzer machine, such as temperature, the partition ratio and individual variation in providing a breathalyzer sample, including breath volume.
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A Massachusetts trial judge, Mark Sullivan, in the case of Commonwealth v. Anthony Daen, denied the defendant’s request for a Daubert-Lanigan hearing in a group of Massachusetts drunk driving cases that were consolidated for the Honorable Judge Mark Sullivan out of the Lawrence District Court. The case involved 60 defendants charged with operating under the influence of alcohol where the defendants submitted to a breathalyzer test.

A Daubert-Lanigan hearing is hearing that a Massachusetts criminal attorney can request challenge the scientific reliability of expert testimony. When this hearing occurs, the Commonwealth presents its proposed scientific evidence to a judge prior to trial so that the judge can determine whether the evidence is sufficiently reliable for a jury to hear the evidence. If a judge finds that the evidence is not scientific reliable, it will be excluded from evidence.

Judge Sullivan ruled that the Daubert standard does not apply because the Massachusetts legislature made breathalyzer test results admissible by statute and devised a statutory scheme for the admissibility of breathalyzer test results. Accordingly, the judge ruled that a Daubert hearing is inapplicable because the test results are admissible under Massachusetts OUI law.