Breathalyzers often provide key evidence in Massachusetts drunk driving cases. Their readings are used against those accused of DUI on a daily basis in courthouses throughout the state. However, breathalyzers are not perfect and false alcohol readings can occur. “Mouth alcohol” is one of the primary sources of artificially high breathalyzer readings, which can result in breathalzyer failures. 

When a person drinks an alcoholic beverage, some of the alcohol remains in the person’s mouth. Alcohol can get trapped under the gum line, under the tongue, under dentures, bridges, or other dental appliances, or in the mouth tissues. Mouth alcohol can cause very high breathalyzer readings, because breathalyzers are designed to measure the alcohol contained in deep lung air. Alcohol contained in the mouth which is blown directly into the breathalyzer during the testing process often produces extremely elevated readings.

To prevent false BAC readings due to mouth alcohol, the Massachusetts breath alcohol testing regulations require a fifteen minute “depravation period,” during which the person arrested for DUI is not allowed to ingest anything. This includes breath mints, mouthwash, or any other substance. The police are required to monitor the person taking the breathalyzer to insure that he or she doesn’t hiccough, vomit, burp, or belch. This is because alcohol in the esophagus or stomach can be regurgitated back into the oral cavity and thereby cause artificially high mouth alcohol readings.

The Draeger Alcotest® 7110 MKIII-C and Alcotest® Model 9510, the only two breath testing instruments which are approved for use in Massachusetts DUI cases, are programmed to detect mouth alcohol. Mouth alcohol detection is likely accomplished through the use of a “slope detector,” which is a section of computer code which will notify the police officer operating the breathalyzer that mouth alcohol is present. However, it is suspected that this feature is not foolproof. In any event, DUI lawyers can likely exclude the breathalyzer evidence if the depravation period and fifteen minute observation rule is violated.

Mouth alcohol can cause falsely high blood alcohol readings in drunk driving cases. Lawyers who specialize in DUI defense, such as Attorney George E. McCarthy, are aware of this possibility and they know how to address it. The mouth alcohol defense is just one example of how it is possible to obtain a dismissal or not guilty finding in a DUI case, even when there are high BAC readings.

In the case of Commonwealth v. Anthony Daens, Lowell District Court Department Docket No.: 07 11 CR 0864,  Massachusetts District Court Judge Mark Sullivan ruled that the Dräger Alcotest 7110 MK-111-C which is the breathalyzer currently in use in Massachusetts DUI cases is “generally accepted as reliable.” The top prosecutor for Middlesex County, District Attorney Gerard Leone agreed with the court’s ruling , as did Essex District Attorney Jonathan Blodgett. However, a group of Massachusetts DUI Attorneys disagreed and will consider appealing. 

In ruling that the breathalyzers used in Mass. DUI cases are reliable, Judge Sullivan cited State v. Jane H. Chun, et al. (A-96-06), a New Jersey Supreme Court ruling which rejected the claim made by New Jersey DUI Lawyers that alleged flaws in the breathalyzer’s “source code,” rendered the device unreliable. The ruling in Massachusetts should not be surprising, considering that the New Jersey case involved the same Dräger Alcotest 7110 MK-111-C which the Mass. DUI attorneys attempted to challenge. While there may have been source code “errors,” they did not render the device unreliable.

This reliability afforded to breathalyzer results in this case may result in an increase of breathalyzer refusals, because it will insure that prosecutors armed with breath test results will have a relatively easy time obtaining convictions for driving under the influence, in most cases. It may also lead to motions to suppress the breathalyzer results on grounds such as failure to comply with the Massachusetts breath test regulations.

Download the full text of State v. Jane H. Chun. (PDF).

The best Massachusetts DUI lawyers are keenly aware of the limitations on a police officer’s authority to stop a vehicle for operating under the influence. In some cases, drunk driving attorneys can successfully challenge the OUI stop and have evidence suppressed, which means that it will be excluded from the drunk driving trial. This often leads to dismissal of the DUI charges or a not guilty verdict.

Subject to a few exceptions, a local Massachusetts police officer’s authority to stop vehicles is usually limited to the city or town which employs the officer.  Smart DUI lawyers are often able to use this limitation on police authority to get favorable results in drunk driving cases. In recognition of this, Boston City Councilor Robert Consalvo has filed a bill which, if passed, would allow Boston or Dedham police officers to exercise police authority and stop vehicles on suspicion of DUI 500 yards past the border between Boston and Dedham. Similar legislation has been enacted which allow police officers from Boston, Brookline, and Newton to make arrests in the vicinity of the City and Town lines.

Apparently, arrests made by Boston and Dedham police officers, have been thrown out of court because they occurred outside of the arresting officer’s legal jurisdiction. The Dedham Police Chief supports the legislation and claims that the borders between Boston and Dedham are sometimes confusing.

If you have been arrested for DUI in one community by a police officer from another community, you should contact a DUI attorney to review your case. You may have a winning defense and your drunk driving arrest may be invalid as a matter of law.

The law allows Massachusetts police officers to search the vehicles of those arrested for operating under the influence of intoxicating liquor. Specifically, police may search a defendant’s vehicle for “evidence of drink.” However, this search is generally limited to the passenger compartment and it cannot extend to the trunk. In order for the police to search a trunk of a vehicle during a motor vehicle stop, there must be a nexus or connection between the criminal activity and the trunk of the vehicle, such that drunk driving related evidence would be reasonably expected to be found there.

Also, if a vehicle is being towed, the police are allowed to conduct a motor vehicle “inventory” to list and document the contents of the vehicle. In some cases, the police find incriminating evidence as a result of conducting a motor vehicle inventory or search for evidence related to the OUI charge. The seizure of items during the towing inventory process is permitted under the “plain view” doctrine. This allows police to seize items found in “plain view,” while the police engaged in a lawful inventory.  However, an inventory is only valid when it is conducted pursuant to a written policy which guides officers.

Given the stiff drunk driving penalties imposed by Melanie’s Law, such as lifetime license suspensions for certain repeat offenders, good lawyers will routinely challenge the prosecution’s evidence by filing motions to suppress. 

The Massachusetts DUI lawyers featured here, including Attorneys George McCarthy, Paul Watkins, and Brian Simoneau thoroughly understand what the law allows the police to do and what it prohibits them from doing during the course of a Mass. DUI car stop and arrest. With this in-depth knowledge, it may be possible to suppress incriminating evidence, such as alcohol containers. Suppressing evidence can substantailly increase the chances of getting a not guilty verdict and avoidng drunk driving costs and penalties.

The U.S. Supreme Court case of Miranda v. Arizona, can sometimes be used to suppress statements made in Massachusetts drunk driving and vehicular homicide cases. Pursuant to the Miranda decision, the police must advise a person who is in custody of certain rights before questioning the person. Prior to any “custodial interrogation,” the police are to inform the suspect of his right to remain silent and his right to an attorney. Statements made in violation of this clear rule should not be admitted in a Massachusetts DWI trial.

When the prosecution attempts to introduced a drunk driving defendant’s statements, which were the product of a custodial questioning, it must prove that the defendant made a knowingly, intelligent, and voluntary waiver of his legal rights.  Factors which can affect whether a statement is admissible on these grounds include the defendant’s literacy, ability to understand English, mental status, and state of drug or alcohol intoxication, to name a few.

The prosecution must also prove that, based on the totality of the circumstances surrounding the questioning,  the statements were the product of free will and not the result of coercion or intimidation by the police. For a statement made as a result of a custodial interrogation to be admissible, the prosecuting attorney must prove the issues of both “free will” and waiver, “beyond a reasonable doubt.”

Massachusetts DUI lawyers can challenge the admissibility of a defendant’s statements by filing a pre-trial motion to suppress.  If the motion is granted, the defendant’s admissions or incriminating statements cannot be used during the drunk driving or vehicular homicide trial.

Many drivers and even some lawyers misunderstand the interplay between the courts and the Registry of Motor Vehicles. This lack of understanding often results in bad advice being given and decisions being made regarding drunk driving plea bargains. For example, it is possible for a judge to order only a 45 to 90 day loss of license and for the Registry to impose a 2 year, 8 year, 10 year, or even a lifetime license suspension. The Registry is required to suspend a driver’s license based on his or her record of prior drunk driving convictions or alcohol program assignments, whenever and wherever they occur.

Repeat DUI offenders and Massachusetts DUI lawyers must understand that the Registry simply applies the law to the individual’s driving record. Under this system, which has been upheld on appeal, the drunk driving defendant’s record and not necessarily a court order, if any, will determine the length of the DUI suspension. This important but often misunderstood fact must be carefully considered before “pleading out” to a Massachusetts DUI charge.

Under Melanie’s law, prior drunk driving and driving while alcohol impaired (DWAI) convictions and alcohol program assignments will count against a defendant regardless of whether the person is charged as a first, second, or third DUI offender in court. Prior DUIs will count, for license suspension purposes, no matter how old they are and no matter where the offense occurred. Even if the prior offense could not be proven in court, where the standard is beyond a reasonable doubt, the prior offense will count if it appears in the official records of the Registrar. Also, in combination with other offenses, such as reckless driving, negligent operation, operating after suspension, or leaving the scene of an accident, a Massachusetts DUI conviction or plea bargain may trigger a 4 year habitual traffic offender revocation.

As a Massachusetts hardship license specialist, I have seen numerous cases where a person pleads out to get a short license suspension, based on misinformation or a misunderstanding, only to have the Registry suspend or revoke the person’s license for an unexpectedly long period of time. Do not let this happen to you.

In order for breathalyzer results to be admissible in Massachusetts drunk driving trials, the Appeals Court has ruled that the results must be the product of what the court refers to as  “proper breath test.” The Massachusetts DUI breath testing regulations specify what is required for such a breathalyzer test. According to the regulations, which were revised in 2006, a proper breath test “shall consist of a multipart procedure, involving at a minimum, the following sequence: (a) one adequate breath sample analysis, (b) one calibration standard analysis, and (c) a second adequate breath sample analysis.”

The “calibration standard analysis” is used to confirm the accuracy of the breathalyzer. In order to be approved by the Massachusetts Office of Alcohol Testing, a breathalyzer must be “capable of analyzing a reference sample of alcohol within +/0.01 blood alcohol content units of the known sample.” This means that the simulator solution sample must read.14, .15. or .16 BAC.

Also, for the breathalyzer results to be admissible to prove operating under the influence, Massachusetts law requires that the two adequate breath samples “must agree within +/-0.02 BAC.” Any difference in breath test readings greater than .02 BAC renders the breathalyzer test completely inadmissible.

In Commonwealth v. Rumery, the Massachusetts Appeals Court recently affirmed that in a drunk driving trial, the prosecution is only entitled to introduce the lower of the two breathalyzer readings, unless the OUI defendant claims that his BAC was rising after his arrest and that his BAC at the time of his driving was lower than the breathalyzer reading.
This “rising BAC defense” can sometimes be proven by using retrograde extrapolation, a scientific technique used to determining blood alcohol levels by working backwards from the time the breathalyzer is taken.