A panel of Justices of the Massachusetts Appeals Court heard oral arguments this Thursday, June 5th, on the admissibility of breathalyzer test results where Commonwealth failed to comply with defense counsel’s discovery request for the operator’s manual to the breathalyzer device used. The arguments were raised in the matter of Com. v. Kristopher Cormier (2013-P-1923. This issue is of critical importance for Massachusetts OUI Lawyers as a result for the defendant in this case could result in the suppression of breath test results.

The issue is whether the Commonwealth should be allowed to rely on breathalyzer test results during trial where the test results were offered through a testifying police officer who administered the test, and without allowing defense counsel an opportunity to review the manual in preparing his case for trial.

This case was brought to the Appeals Court on an interlocutory appeal filed by the defendant after a trial judge of the Fitchburg District Court denied the defendant’s motion to suppress the breathalyzer test results.

In presenting his arguments to the Appellate Court, the defense lawyer referred to the Code of Massachusetts Regulations, chapter 501 section 2. This section of the CMR outlines the purpose and duty of the state’s Office of Alcohol Testing (OAT) in creating an alcohol testing program, certifying officers to administer breathalyzers, and regulating alcohol testing procedures. Most importantly for this case is section 2.04(f), which delegates to the OAT the responsibility of “creating and maintaining the Breath Test Operator’s Manual.” The regulation also charges the Director of the OAT with the duty to “establish a uniform statewide training and certification program for Breath Test Operators.” 501 CMR §2.07(1).

The defense argued that the Commonwealth should be precluded from presenting breathalyzer test results in his case because the defendant was not provided with a copy of the operator’s manual and so was unfairly deprived of the opportunity to scrutinize the breathalyzer test results and the training of the officer administering the test. The essence of the argument, raised by Attorney Steven Panagiotes was that the OAT failed to comply with the regulation, thus resulting in the Commonwealth failing to provide the manual to the defendant.

One Justice stated we wouldn’t be here if OAT complied with the regulation and [OAT] didn’t seem to even care.” The defendant therefore did not have access to the detailed procedures and methods used by the testifying officer in administering the test, and so was unable to adequately cross-examine the witness.

In disputes arising from breathalyzer testing, the details really are of upmost importance to a defendant’s case. In failing to provide a defendant with the detailed description of the procedures and protocols in breathalyzer testing, the Commonwealth essentially shields testifying police officers from having to answer difficult questions that may lead to the discovery of a mistake in their tests.

Furthermore, even if it is more challenging for a defendant to examine an officer’s qualifications or knowledge of the testing protocol without access to the officer’s training material, the requirement of creating a manual may still not address the underlying problem at all. As suggested by one of the panel justices and later admitted by the Commonwealth in its own oral arguments, the regulation does not explicitly require that officers be trained on the operator’s manual. In other words, even if the manual did exist at the time of the defendant’s arrest (as was required under the regulation), there is no requirement that the certification process for the officers include training on the manual. Under this version of the regulation, police officers are shielded from rigorous scrutiny from all sides.

The Appeals Court is likely to issue a decision within two months. Any result could eventually be appealed further to the Massachusetts Supreme Judicial Court.