In Commonwealth v. Cormier, the defendant was arrested for an OUI and speeding in 2012. He agreed to take a Breathalyzer test. The results of the test showed he was above the statutory limit for alcohol consumption.
During discovery, the defendant asked for the manual for the particular Breathalyzer machine that had given results in his case. The Office of Alcohol Testing (OAT) responded there was no manual. In response, the defense asked to exclude the breath test under 501 Code Mass. Regs § 2.04(f), which requires OAT to develop and maintain an operator’s manual.
The defense asked for an evidentiary hearing. At the hearing, an OAT supervisor testified that the machine in question was new and had only been introduced the year before the defendant’s arrest and that it was in use throughout the state. She explained the machine had two parts. The information related to the first part, the inner workings that measured breath, wasn’t in a manual because the manufacturer had a proprietary interest in the technology. The second part related to state-specific software that had to be installed because of different breath test requirements across the country.
The OAT representative testified that the manufacturer might have operator manuals related to the state-specific portion, but these wouldn’t be accurate for Massachusetts because of the state’s own specific requirements. She also testified that the manuals produced for past machines were outdated. She also testified OAT had developed a PowerPoint presentation to train the breath operators.
The judge who ruled on the motion found that OAT had not complied with its own regulations that required it to create a breath-operating manual. However, it didn’t find that OAT’s failure on this point had caused any prejudice and declined to exclude the Breathalyzer results.
One justice of the Supreme Judicial Court granted the defendant’s request for leave to prosecute an interlocutory appeal from the court’s denial of his motion to suppress. The appellate court explained that for a Breathalyzer test result to be valid and admissible, the Commonwealth must show it complied with regulations related to accuracy and method of testing.
The regulations are described in 501 Code Mass. Regs § 2.00 et seq. At issue here was § 2.04, which covers OAT’s responsibilities. The court further explained that the section authorizes OAT to perform all tasks related to breath testing, but it doesn’t dictate performance. It doesn’t in fact require OAT to perform particular tasks, even though it makes OAT responsible for them. To reinforce its interpretation, the court noted that later sections do mandate actions, such as certifying all breath test devices by OAT and establishing uniform statewide training for breath test operators.
Accordingly, the appellate court didn’t find OAT non-compliant for its failure to create a manual. It further noted that even if OAT were required to create a manual, the defendant wouldn’t be entitled to relief because all that was required was that the analysis be performed by a certified operator. In this case, a certified operator did perform the breath test, using a conforming device in the approved way. It also found that the PowerPoint presentation served as a manual. Accordingly, the lower court’s order was affirmed.
If you are charged in Massachusetts with an OUI, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.
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Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015
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