There has been considerable controversy, misinformation, and media attention regarding a problem with the administration of chemical breath tests in Massachusetts DUI cases.
Chemical breath tests which police administer in Operating Under the Influence cases in Massachusetts are governed by 501 CMR 2.11. This regulation requires the use of a “simulator” which has been tested to contain a pre-determined alcohol concentration. In order to ensure the validity of breath tests, this simulator is tested in between an arrestee’s two breath samples to ensure that the breathalyzer is functioning properly and reporting an accurately reporting the test subject’s blood alcohol content. The DUI suspect’s breath sample and the simulator test is separated by two “air blanks” to ensure that there is no air from the subject’s breath sample in the device when the simulator is being tested.
The Drager Alcotest 9510 breath testing devices, which were placed into service in police departments throughout Massachusetts several years ago, should have been programmed to invalidate a breath test if the reported blood alcohol content (BAC) of the simulator falls outside of the range of 0.074 – 0.086%. It has become apparent that some devices may not have been programmed in accordance with this legal standard.
Therefore, a relatively small number of breathalyzer tests in Massachusetts may have been invalid, because the breathalyzer failed to reject and invalidate a test If the simulator calibration check result was not between 0.074 – 0.086%. If this occurred, the breath test is invalid, as a matter of law, and should have been admitted in a drunk driving prosecution.
Assumedly, the Commonwealth of Massachusetts has records of breath tests administered and the Commonwealth should contact defense counsel in cases where convictions were obtained based on invalid breath tests. It would seem that such information is considered exculpatory under Brady and other cases which place an affirmative duty on the prosecution to produce exculpatory evidence to defense counsel in criminal cases.
If you believe that the breathalyzer results may have been invalid in your Massachusetts DUI case, you should contact your defense lawyer and have him or her review the breath test ticket that was generated. If the calibration check result falls outside of the acceptable range, you may be able to seek judicial review of your conviction by filing a Motion for a New Trial, pursuant to Rule 30 of the Massachusetts Rules of Criminal Procedure. These motions can be granted at any time if it appears that justice may not have been done in the original trial.
Of the thousands of breath tests administered in Massachusetts, only a few hundred cases are impacted by this issue. The vast majority of tests are valid and admissible.