Articles Tagged with “breath testing device”

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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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Over 80% of OUI cases heard by a Massachusetts Judge and 50% of OUI cases in a jury trial are dismissed. This high rate of acquittals led the Boston Globe to launch a spotlight investigation on the matter in December of 2011. The findings of the final report show that the high rate of acquittals is due to the reluctance of prosecutors to dismiss flawed OUI cases, the improper administration of breath and blood tests, the inaccuracies from the results of those tests, and the prosecutions’ high burden of proof in regards to satisfying the elements of an OUI case. Most frequently, the arresting officer improperly administers the breath test on the suspect, thus leading to the inadmissibility of the evidence and the failure of the prosecution to proffer evidence of the suspect’s blood alcohol concentration (BAC).

Breath testing instruments are small hand held pieces of technology, which like most technology, are often prone to errors. In fact, research indicates that breath tests can vary at least 15% from actual blood alcohol concentration. At least 23% (that’s about one out of every four) of all individuals tested will have a BAC reading higher than their actual BAC. Therefore, the findings of the test leave a lot to be interpreted and analyzed by your attorney and the judge presiding over your case.

DEFENSES TO BREATH TEST RESULTS
Breath testing instruments most commonly experience problems with calibration, interfering substances, and mouth alcohol. Most breathalyzers require recalibration at least once a year to maintain accuracy. Thus, if the tester has not received the proper recalibration maintenance, it may lead to inaccuracies and false readings of the machine. Additionally, there are non-alcoholic substances that can contribute to a false reading such as the weight, health, metabolism, diet, and mental health of the subject. Medical illnesses such as diabetes, emphysema, bronchitis, and asthma can also have a dramatic impact on the results of the test. Breath testing instruments are also quite sensitive to temperature; the machine is calibrated to test the breath at 34 degrees centigrade, but studies show that at the time of OUI arrest, people generally come closer to 35.5 degrees centigrade. The result of this can mean a 10-20% higher reading.
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