Massachusetts OUI Lawyers will once again have to deal with breath test evidence as most police departments have complied with the reforms required by Judge Brennan as part of the Ananias litigation.  Last week I spoke at the Plymouth Country Bar Association on Breath test evidence.  It has been a long time since many lawyers have had to try to keep a breath test out of evidence as a result of the Ananias litigation.  But it is back.  

What do lawyers need to know about breath test evidence?  

All breath test data is now online; you can get all the periodic tests and annual certifications for each breath test machine in the online portal. As part of the reforms required by Judge Brennan, the Office of Alcohol testing is suppose to be more transparent about what it is doing with the breath test machines, the documents that it has and be more forth coming with discovery requests.  While all the documents are online, it is still the Commonwealth’s burden to introduce and provide these documents at the time of trial.  The online portal means that defense lawyers do not have to wait for the Commonwealth to produce these documents to begin determining if the breath test documents would be admissible and show that the machine is reliable.  

What evidence and what witnesses will the Commonwealth have to call at trial to admit a breath test?  

The Commonwealth must establish that the defendant consented to take a breath test; that the breath test operator observed the defendant for 15 minutes prior to administering the breath test and that the breath test machine was periodically tested and annually certified.  

Prior to the Ananias litigation, some judges would allow a breath test to be put into without live testimony by presenting the documents from the office of alcohol testing.  These documents were put into evidence as business records.  

Judge Brennan stated in the Ananias decision that the breath test that comes from Drager is not the same machine when it gets to the police station.  There are alternations made to it by the Office of Alcohol Testing.  The annual certification documents shows that the OAT technician is making some kind of adjustments.  The worksheets used to conduct the annual certification, which were never disclosed at the time of the Zeininger decision, show that the OAT is make some adjustments and doing some calculations when certifying the breath test machine.  

The SJC held in Zeininger that the OAT records memorialize routine scientific measurements. The Court held that rather than expressing an opinion it shows that the calibration and diagnostic testing was properly performed.  The record contain notation and deviations.  The SJC held that OAT does not prepare the records for use in court but according to its statutory mandate.Further, Court said the primary purpose of the OAT is to standardize all breath testing across Massachusetts.  With the lab becoming accredited and independent audits it is apparent that the purpose was for use the evidence in court.  The reasoning of the SJC in Zeininger is inconsistent with the findings of Judge Brennan and the reality of what the Office of Alcohol testing is doing.  The OAT would never have had to become accredited if it was not using the records primarily for the purposes of prosecutions in court cases.  The SJC holding in Zeininger must be revisited and Massachusetts OUI Lawyers should contest any breath test evidence coming in without the live testimony of the officer that conducted the annual certification.  

What other issues will arise with breath testing?  

While Judge Brennan found the breath test machine scientifically reliable, standards of science and knowledge may change to allow this issue to be revisited.  Certainly, before a jury a lawyer is entitled to show that breath test evidence is flawed.  That in many cases we learn of these flaws years after someone has been wrongfully conducted of OUI based on the results of a machine.  Given the time and expense of the Ananias litigation, it would be unlikely that a new challenge to the reliability of the breath test would be successful without some substantial change in arguments made.  The breath temperature is an area where further scientific study and new arguments may persuade the court that breath temperature could alter the breath test results.  The State of Alabama uses an attachment to adjust the reading for breath temperature.  While Judge Brennan found the partition ratio scientifically reliable, a jury is entailed to know that the breath test results are based more on averages than someone’s individual BAC.  The jury should know that the machine is doing an indirect test of BAC as it is not testing blood but making conversions and assumptions that could be wrong.  Juries put a lot of weight into breath test evidence, but with increased knowledge of the science Massachusetts OUI Lawyers can educate the jury to the flaws with this test if the evidence is allowed to come in at trial.

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