Breathalyzer Evidence in Massachusetts DUI Cases

Commonwealth v. Brazelton, 404 Mass. 783 (1989)

A person arrested for OUI in Massachusetts has no statutory or constitutional right to counsel prior to deciding whether or not to submit to a chemical breath or blood test. Being asked to submit to a breathalyzer test does not trigger 6th Amendment or due process rights.

Commonwealth v. Durning, 406 Mass. 485 (1990)

A valid breath test consists of two adequate breath samples which are separated by air blanks and a test of the simulator solution which must register .14, .15. or .16. There can me no more than .02 deviation between the first and second breath sample. However, the admission of a single breath test result at trial does not violate a defendant's due process rights.

Commonwealth v. Ragusa, 2011 WL 5864263

The defendant was convicted of operating under the influence of liquor, fourth or subsequent offense (OUI), in violation of G.L. c. 90, § 24(1)( a ) (1), and negligent operation of a motor vehicle, in violation of G.L. c. 90, § 24(2)( a ). He appealed from his OUI conviction on the grounds that the certificate of breathalyzer equipment calibration by an analyst of the office of alcohol testing was inadmissible hearsay and testimonial, and so its admission violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution. Cf. Melendez–Diaz v. Massachusetts,129 S.Ct. 2527, 2531–2532 (2009). This contention was squarely addressed and rejected by the Supreme Judicial Court in Commonwealth v. Zeininger, 459 Mass. 775, 776, 785–789 (2011), decided after the defendant's brief was filed. The DUI conviction was, therefore, affirmed.

Commonwealth v. Rumery, 78 Mass. App. Ct. 68 (2011)

In a Massachusetts drunk driving trial, the judge committed an error by allowing both breath sample results into evidence, as only the lower of the two readings is admissible. However, the admission of both readings in this case was, due to the specific facts and circumstances of the case, "harmless error."

Commonwealth v. Steele, 455 Mass. 209 (2009)

A breathalyzer test must consist of two sufficient breath samples which are analyzed. However, only the lower of the two breathalyzer results can be admitted as evidence of a defendant's blood alcohol concentration. Furthermore, to constitute a valid breath test, the two breath sample readings must be within +/-.02 of each other. In allowing admission of only the lower breathalzyer reading, the court noted that the regulations promulgated regarding breathalyzer use and operation in Massachusetts are designed to err on the side of caution and in favor of the defendant/driver.

Morris v. Commonwealth, 412 Mass. 861 (1992)

Morris challenged what was a 90 day administrative per-se suspension of his driver's license for failing a breath test, by claiming that the Massachusetts breath testing regulations were invalid. The regulations establishing and governing the periodic breathalyzer equipment testing and inspection program are valid and not in conflict with the statutory breath testing requirements established by G.L. c. 90, § 24K.

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