Massachusetts Criminal Defense Lawyer Blog

Preliminary breathalyzer test result, PBT, are inadmissible to prove a DUI offense in Massachusetts. Accordingly, if you failed a portable breathalyzer test the Commonwealth cannot offer that evidence to the jury.

A case from Wisconsin raised an interesting issue of whether a defendant can offer preliminary breathalyzer test results to show that the defendant’s blood alcohol level was lower at the time of driving. The DUI lawyer in this case retained an expert who used the results of the preliminary breathalyzer test to argue to the jury that the defendant was still in the absorption phase and his blood alcohol level was lower at the time of driving than at the time the breathalyzer test was given.

The answer to this question would seem to be yes, how can the state disclaim the scientific reliability of its own evidence and deprive the defendant of his right to present a defense and exculpatory evidence. The Wisconsin Supreme Court rejected this argument, relying on the intent of the legislature to limit the admissibility of portable breathalyzer test results.

The court’s ruling reconciles two Wisconsin Statutes – Wis. Stat. sec. 343.303 and Wis.Stat.sec. 907.03. Wis. Stat. sec. 343.303 expressly prohibits the use of a PBT to prosecute a motorist accused of operating a motor vehicle while intoxicated. On the other hand, Wis.Stat.sec 907.03. provides for the admissibility of expert opinion testimony regardless of the admissibility of the underlying data. The defendant contended that even though the portable breathalyzer is inadmissible that his expert’s opinion should be allowed because the expert relied upon it in reaching his opinion. The defendant attempted to draw a distinction between offering the PBT results. which he was not doing and offering testimony that relied on the PBT results. The court held that is no distinction and the statute prohibiting PBT results from being admitted into evidence would be violated by allowing the expert to rely on them in forming his opinion.

The Court held that the legislative policy was clear that portable breathalyzer test results are inadmissible. The court reasoned the legislative intent behind limiting the admissibility of PBT results “helps law enforcement officers do their jobs with more cooperation from drivers than they would otherwise be likely to get if the results were admissible in court. The court noted that a PBT may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest.

Similarly under Massachusetts law, preliminary breathalyzer tests are inadmissible. PBT have never been deemed scientifically reliable and as a result, may not be used as evidence against a defendant.

The Massachusetts courts have not addressed whether a defendant can offer the PBT. If this occurred in Massachusetts, the court probably would allow a defendant to offer the results of the PBT as the decision of the Wisconsin Supreme Court appears to deny the defendant his right to present a defense and cross examine the State’s evidence under the Sixth Amendment and Fourteenth Amendment to the United States Constitution.
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The admissibility of breathalyzer evidence in Massachusetts may be impacted by a confrontation clause case from Virginia that the United States Supreme Court agreed to hear for the upcoming term. Commonwealth v. Briscoe. The appeal in Briscoe concerns several cases that were consolidated and all raise the same issue of whether Virginia’s notice and demand statute satisfies the Constitutional requirements of the Sixth Amendment confrontation clause.

The Briscoe cases involves the issue of the admissibility of a drug certificate of analysis. Unlike the Melendez-Diaz case where the Supreme Court required live testimony, the Virginia statute only allows the certificate to be admitted if the State gives the defendant notice and demand of their intent to rely on the affidavit seven days prior to trial and files this with the court. The defendant is then given the opportunity to call the chemist as an adverse witness with the cost of the summons, incurring to the State.

The Melendez-Diaz decision suggested that States could enact law requires a defendant to assert the right of confrontation prior to trial, suggesting that notice and demand statutes would satisfy the Sixth Amendment requirements. Additionally, the Melendez-Diaz decision clearly indicated that the right of confrontation could be waived.

The Virginia statute appears contrary to the language of Melendez-Diaz and the court should strike it down, though it would be anticipated the decision would essentially direct states as to how to pass a Constitutional notice and demand statute. The flaw in the Virginia statute appears that it requires the defendant to subpoena the lab technician and call the lab technician as a witness in the defense case. In a criminal trial, the burden is always on the Government to call witnesses to establish the essential elements of the offense and the due process clause is violated by efforts to shift the burden to the defendant. The language of the Sixth Amendment also underscores that the Government has to call witness against the defendant to preserve the defendant’s right to confront witnesses against him.

In addition to the language of the Melendez-Diaz decision, the defense counsel’s brief in Briscoe depicts other flaw with the Virginia statute that the right to call the chemist as an adverse witness in the defense case is not the same as being provided with the opportunity for cross examination after the chemist testified as a witness on direct examination for the Government. Further, the defense brief points out that this essentially time saving procedure has no logical limitation and could be expanded to other cases not involving drug analysis, reverting back to the rejected concept of trials based on affidavit.

The United States Supreme Court should strike down the Virginia statute. Massachusetts has yet to enact any similar notice and demand statutes in DUI case or drug cases. The impact of the United States Supreme Court confrontation clause will have a major impact on the admission of breathalyzer evidence as the confrontation clause cases define how the Government must proceed to have documents regarding the accuracy and reliability of the breathalyzer machine placed before the court.

By the time Briscoe is decided by the Supreme Court, likely to be June 2010, there will be numerous decision from state courts applying Melendez-Diaz to the admissibility of breathalyzer evidence. The Briscoe decision is likely to shape the method by which states enact notice and demand statutes.
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