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Massachusetts Appeals Court explains when a failed breath test attempt can be admitted during an OUI trial

Breath test evidence is heavily contested in Massachusetts OUI trials.  When someone takes a breath test, as a Massachusetts OUUI Lawyer, we attempt to exclude the results from evidence as being unreliable.  But what happens if the machine does not register, is the failed attempt to take a breath test admissible and under what circumstances.  That was the issue in the case of Commonwealth v. Daigle, the Massachusetts Appellate Court answered this question.

A failed breath test is admissible in certain circumstances. It is well settled that a defendant refusing to take a breath test is not admission against them during an OUI trial. However, if a defendant signs a consent form to take a breath test, a machine malfunction or other errors may be admissible, In the case of Commonwealth v. Curley, police officers alleged that the defendant was purposely blowing into a breathalyzer machine incorrectly as to inhibit the machine from producing a reading. Because the defendant in that case signed a consent form, the jury could infer from his actions that he waa trying to avoid giving a sample while appearing to try and take the test.

What happened in the Daigle case? 

One night in November of 2017, the defendant, Amy Daigle was driving home from a restaurant. She allegedly failed to stop at a stop sign on Sunset Drive in Newbury. A local police officer, Officer Jenkins observed her running the stop sign and pulled her over. When he got to the car, he alleges that the defendant’s eyes were glassy, and she smelled of alcohol. He also recalls that she was slurring her words and admitted to having two glasses of wine. The officer then asked her to perform a field sobriety test, which she agreed to, but she was unable to pass the test. Officer Jenkins then arrested her. At the police station, Jenkins asked the defendant if she would take a breathalyzer test, and she complied. However, the machine was malfunctioning so the officers could perform a correct reading. The officers tried three times, and they even reset the machine, but these efforts proved to be unsuccessful. 

Although the machine malfunctioned and the officers could not get a reading, the lack of reading was introduced as evidence at the trial. This evidence was disputed as to whether it should have been admissible or not, because even if the machine had worked, Jenkins was not certified to use a breathalyzer, nor was the machine certified. So, when the state learned that Jenkins was not a certified breathalyzer operator and the machine had not been certified, the Appellate Court found that the evidence failed to meet the statutory and regulatory requirements. Without a breathalyzer reading Officer Jenkins, besides his impression of Amy, did not have any proof that she was intoxicated; thus, his testimony was found to be nothing more than an opinion. 


In her defense, the defendant argued that she had recently recovered from knee surgery, and her poor performance on the field sobriety test resulted from her knee. She also explained that she suffered from PTSD, and she was nervous and hyperventilating during the test, which also contributed to her poor performance. Whether this is the reason why she failed the test is disputed, but without a reading from a machine, the officers have no proof that the defendant was actually intoxicated. 


The Appeals Court then decided that the evidence failed to meet statutory and regulatory requirements. The judges ruled that the failure to register a reading is in itself a result, and that result is not admissible unless the Commonwealth can prove that the breath test was working properly. The Appeals Court could not say for certain if this improperly influenced the jury. Because the breath sample was admitted in error, even if it influenced the jury in a very minor way, that is sufficient to overturn the lower court’s ruling.


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