Or I’ll Huff. . . and I’ll Puff. . . and I’ll. . . Exclude the Breath Test Results.

Breath Test Results

Recently in the news there have been reports of District Attorneys Offices across the Commonwealth excluding Breathalyzer test results from their Massachusetts DUI/OUI/DWI prosecutions. There is a reason for their exclusion and I’ll attempt to explain it here.

According to Massachusetts DUI Laws, a breath test device must be capable of “performing subject breath tests in the following sequence: (a) one adequate breath sample analysis; (b) one calibration standard analysis; (c) a second adequate breath sample analysis.” It is the responsibility of the Office of Alcohol Testing to certify these breath test devices manually and to approve and distribute all calibration standards used with them. The failure of these machines, and the exclusion of breath results, has to do with the calibration standard.

But what is the calibration standard and what is it for? Essentially what happens when you blow into a Breathalyzer machine is the machine compares your breath sample against a sample contained within the machine, that is the calibration standard. The alcohol content of the calibration standard is required to be 0.080 ± 0.005% which corresponds to a permissible range of anywhere between 0.074% and 0.086%. These calibration standards are supposed to be tested periodically to ensure that they are within limits. In cases across the Commonwealth, this calibration standard has been found outside of these limits, thus skewing the results of the Breathalyzer tests compared against them.

One would think that a machine as sophisticated and important as the Draeger 9510 Breathalyzer, used throughout the Commonwealth of Massachusetts since 2012, would have the ability to detect such failures and terminate the test. The machine can detect the presence of mouth-alcohol or other interferent that may contaminate a breath sample in which case it terminates the test and reports an error. One would think that it could also detect when its own calibration standard is outside of the permissible limits. Such an ability would most certainly have preempted any wrongful convictions that may have resulted from faulty breathalyzer evidence.

The questions now are many. For how long has this been a problem? How many people have been convicted based upon this defective evidence? How many people have offered pleas or admissions believing that this unsound evidence would be admitted in the case against them? What else is failing within the Draeger 9510 machines? And most importantly, why are we only finding out about this now?

Until these questions are answered, District Attorneys Offices throughout the Commonwealth of Massachusetts should no longer seek to admit them into evidence.

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