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Comments on recent case regarding admissibility of breathalyzer test results

The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Zoanne Zeininger which addressed the issue of whether the Sixth Amendment requires the Commonwealth to present the live testimony of a witness from the Office of Alcohol Testing in order to admit breathalyzer test results at a Massachusetts DUI trial. Click here to read in SJC decision in Zeininger.

At trial, the Massachusetts OUI attorney, argued that the Office of Alcohol Testing documents could not be admitted into evidence without the live testimony of a witness from OAT in order to preserve the defendant’s right of confrontation under the Sixth Amendment and the recent case of Melendez-Diaz v. Massachusetts. At a DUI trial, the Commonwealth generally subpoenas a packet of documents from the OAT that show compliance with the annual certification and periodic testing requirements of Massachusetts drunk driving law. The Commonwealth generally seeks to admit these documents into evidence as business records without live testimony from the Office of Alcohol Testing. The Zeininger case raised the issue of whether this practice satisfied constitutional requirements.

The Massachusetts Supreme Judicial Court held that the court undergoes a two part inquiry to determine whether out-of-court statements are admissible at a criminal trial. First, it determines whether the statement is admissible under a hearsay evidence exception and second whether it satisfies the requirements of the Confrontation Clause of the Sixth Amendment.

The SJC held that the OAT documents are made by a public official having a statutory duty to comply with a rigorous regulatory certification. The Court held that these records do not express any opinion but memorialize routine scientific measurements. Further, the court stated that the records qualify as business records because they were not created essentially for use in court, but pursuant to the mandates of Massachusetts statutes creating the regulatory scheme. Accordingly, the court held that the records are admissible under Massachusetts evidence law.

The SJC also rejected challenges to the admissibility of the OAT records based on the Sixth Amendment Confrontation Clause. The SJC held that the Oat records are not made for the purpose of proving some fact at trial but to comply with its statutory mandate.

As a Massachusetts OUI lawyer, the court’s decision is contrary to the United States Supreme Court’s Melendez-Diaz decision as the only purpose for the OAT records is to establish the reliability of the breathalyzer test at trial. But for the fact that breathalyzer results are used in court, there would be no purpose for the records or testing of the machine. Accordingly, the Court ‘s suggestion that the records are not prepared primarily for trial is simply incorrect.

Additionally, the SJC’s claim that the records the records memorialize routine scientific measurements is inconsistent with the language of Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009) which held that the Confrontation Clause is essential to ensure the reliability of scientific procedures in court. The SJC ignores the language of the Supreme Court in Melendez-Diaz by suggesting that the OAT testing procedure is simple so that confrontation is not required.

As a Massachusetts DUI lawyer, the court’s decision and reasoning is incorrect and contrary to the requirements of the Confrontation Clause as set forth in the United States Supreme Court case law. The United States Supreme Court is expected to release its decision in Bullcoming v. New Mexico by the end of the terms, which may undermine the SJC reasoning in Zeininger.

As a Massachusetts OUI attorney, I would recommend continuing to object based on the confrontation clause to the admissibility of the breathalyzer documents until the issue is resolved by the United States Supreme Court. Attorney DelSignore is a DUI lawyer in Massachusetts handling cases throughout the State. Call 781-686-5924 to speak to Attorney DelSignore directly or send an email through this website.

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