"breath tests"

The use of Breathalyzer test instruments has become an increasingly regular routine in the United States, as they allow police officers to make roadside determinations of intoxication. The results from roadside administered breath testing machines provides evidence of the accused’s blood alcohol content, which is enough to constitute an arrest for Operating Under the Influence (OUI) in Massachusetts under General Laws c. 90 s. 24. However, the use of breath testing machines, more commonly known as breathalyzers, in OUI cases is often contested due to the inefficiency and inaccuracy of the machine’s readings. The problem with the testing machines arises when the breath testing instruments give an incorrect read, face problems of inaccuracy, or a police officer makes a mistake administering the test or during the aftermath of the arrest. Because breath testing involves the analysis of microscopic amounts of alcohol it is critical that everything involving the breath test be done with precision and pursuant to established procedures–small variances in procedures can result in huge variances in results. In the event that the breath testing machine has given a false or inaccurate read, an experienced Boston, Massachusetts OUI attorney will be able to file what is known as a Pierre Motion, or a Motion in Limine to have the results of the breath test suppressed.

WHAT IS A PIERRE MOTION?
Established in 2008 in Commonwealth v. Pierre, the Court held that the Commonwealth must prove the admissibility of a breath test result before admitting said result into evidence at trial. A breath test result is considered to be inadmissible at trial unless and until the Commonwealth proves the result’s admissibility by establishing compliance with breath test regulations. Massachusetts requires a breath test to be administered in accordance with M.G.L. c. 90, §24K and 501 CMR 2.00. Both this law and regulation set forth the proper method for administering a breath test, and require the certification of breath testing machines and completed training courses for officers who wish to operate the devices.

According to 501 CMR 2.14, proper administration of a breath test requires four parts: (1) The arrestee’s consent to a breath test shall be documented by the arresting officer or the Breath Test Officer (BTO),  (2) The breath test shall be administered by a certified BTO on a certified breath test device,  (3) The breath test shall consist of a multipart sequence consisting of: (a) one adequate breath sample analysis;  (b) one calibration standard analysis; and  (c) a second adequate breath sample analysis, and (4) If the sequence does not result in breath samples that are within 0.02% blood alcohol content, the officer must re-administer a new testing sequence. A Pierre Motion is a preliminary motion that will determine whether the testing was appropriately administered. In the event that the administration of the test was not in compliance with M.G.L. c. 90, §24K and 501 CMR 2.00, the test result is not considered reliable evidence and therefore the test result will be barred from entered as evidence. The Pierre Motion is a Motion in Limine, which means that the admissibility determination will be held away from the eyes and ears of the jury in a private meeting before the judge. This distinction prevents the jury from being prejudiced against the defendant due to evidence of the test result.
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One of the most common ways for Massachusetts State Police to charge drivers with Operating Under the Influence (OUI) is through the use of roadblocks and sobriety checkpoints. The purpose of a sobriety checkpoint as defined by the Massachusetts legislature is to “further educate the motoring public and strengthen the public’s awareness to the need of detecting and removing those motorists who operate under the influence of alcohol and/or drugs from our roadways.” Sobriety checkpoints and roadblocks are organized in a joint effort by the State and local police, through which cars traveling on a predetermined road will be stopped and subject to police questioning. This allows officers to take an initial overview of the condition of the car and the condition of the driver, assessing whether the driver could be under the influence of alcohol. If the officer reasonably suspects that the driver may be under the influence of alcohol, he or she will be directed to take a preliminary breath or chemical test or instructed to perform a series of roadside sobriety tests. If you register a 0.08% blood alcohol content during a roadside sobriety test or breath test in Massachusetts, you may be charged with operating under the influence and face serious consequences. In instances such as these, the evidence of ones impairment while operating a vehicle are exclusively found in the results of the breath, chemical, or roadside sobriety test issued by the police officer. The results of these tests are often incorrect or inaccurate due to human and machine errors. An aggressive and accomplished Massachusetts OUI defense attorney will know how to proceed with your case and achieve the most favorable outcome in the event you are charged with OUI at a roadblock.

Fourth Amendment Conflict
The Fourth Amendment of the United States Constitution protects citizens from unreasonable search and seizure, thus it is illegal to stop or search someone without a search warrant or at least probable cause. While the U.S. Supreme Court has made the OUI exemption to the Constitution, twelve states have found that sobriety checkpoints violate their own state constitutions or have outlawed them. In these states, individuals have more protections against unreasonable searches, and have banned the use of police sobriety roadblocks. However, this is not the case in Massachusetts. In the 1980’s, Massachusetts’s residents challenged the constitutionality of the use of such roadblocks to catch those driving under the influence. In Commonwealth v. McGeoghegan, 389 Mass. 137 (1983) and Commonwealth v. Trumble, 396 Mass. 81, 92 (1985), the Massachusetts Supreme Court found that the State police’s method of using roadblocks to detect drunk drivers was reasonable under both the State and Federal constitution. The adjudication of these cases did however prompt the Massachusetts Supreme Court to outline the necessary requirements to establish a legal roadblock. For a roadblock to be permissible under Massachusetts state law, it appears that the selection of motor vehicles to be stopped must not be arbitrary, safety must be assured, motorists’ inconvenience must be minimized and assurance must be given that the procedure is being conducted pursuant to a plan devised by law enforcement supervisory personnel. The Commonwealth of Massachusetts also requires the state police to notify the media within four days that a sobriety checkpoint is going to be held on a specific date in a specific county.

The biggest issue with the use of roadblocks in Massachusetts is that police officers do not have to witness any erratic behavior or dangerous driving to pull you over; in other words, there exists no probable cause for the stop. This lack of probable cause leads to the dismissal of many OUI cases in Massachusetts, as the police officer will be required to admit that the individual’s driving or conduct was never at issue. An experienced Massachusetts OUI criminal defense attorney will know the best defenses and strategies to win your case. In the event that you are charged with an OUI at a roadblock, speak to a smart and qualified attorney immediately.
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Articles Tagged with “breath tests”

Pretrial Motions in Massachusetts OUI Cases Can Often Tip the Scale in Favor of the Defendant

The Constitutionality of Roadblocks and Sobriety Checkpoints in Massachusetts