Massachusetts Appeals Court Turns Away Challenge to Breathalyzer in OUI Conviction

The Massachusetts Appeals Court today affirmed a defendant’s conviction for operating under the influence of alcohol that was based on the defendant’s failing the Breathalyzer test.  The name of the case is Commonwealth v. Costa

The primary question for the Appeals Court in this case was whether the Commonwealth followed the rules in maintaining and testing the Breathalyzer machine.  There are a series of regulations, enacted by the Executive Office of Public Safety, that dictate how Breathalyzer tests are to be administered and, just as importantly, how the machines themselves are to be maintained.  A prosecutor cannot share a Breathalyzer reading with a jury unless it is proven the Commonwealth complied with the regulations to ensure an accurate result.

The regulation at issue in this case was the “periodic testing” requirement.  The Breathalyzer machine has a self-testing device to ensure it is providing accurate results.  When a suspect is under arrest for operating under the influence of alcohol, he actually provides two breath samples.  Between the two samples, the Breathalyzer machine tests a gas that is contained in a cylinder in the machine.  The gas contains an alcohol concentration of 0.08%.  When the machine tests the gas between the subject’s two breath samples, it must register a reading of between 0.074% and 0.086%.  If the gas sample does not test within that range, the machine is not working properly and the suspect’s Breathalyzer reading is not valid.

The newer Breathalyzer machine contains two cylinders that hold the testing gas.  The machine uses up all the gas in one cylinder and once it is empty, it begins to use the gas in the second cylinder.  When both cylinders are empty, the operator of the Breathalyzer machine replaces the empty cylinders with two full cylinders.  Once the new cylinders are installed, the Breathalyzer operator tests the newly-installed gas to ensure it is within the proper testing range (this is called the periodic testing requirement).

In this case, the defendant made the argument that the cylinder used as a test between his breath samples was different than the cylinder used for the periodic testing.  Therefore, the Commonwealth could not establish that the gas in the cylinder used to ensure the reliability of his test was within the proper range.  The Appeals Court rejected the defendant’s argument and concluded he did not understand the function of the periodic testing.  The Court said the calibration standard analysis is not designed to test the concentration of the gas in each cylinder, but rather to make sure the device is functioning properly.  Accordingly it doesn’t matter if the machine is testing the gas in the second canister rather than the gas in the first.

This case illustrates the mind-numbing rules and regulations that are in place to ensure the Breathalyzer machine is working correctly.  In every OUI case, the Commonwealth is required to produce documents generated by the Office of Alcohol Testing that record data related to the machine, the simulator gas, and the operator’s certification.  Experienced criminal defense attorneys can interpret the data to determine if there are any errors that might result in the suppression of the Breathalyzer evidence.  If you have been arrested for OUI, you should call a defense attorney right away to explore your options.