The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Zoanne Zeininger which addressed the issue of whether the Sixth Amendment requires the Commonwealth to present the live testimony of a witness from the Office of Alcohol Testing in order to admit breathalyzer test results at a Massachusetts DUI trial. Click here to read in SJC decision in Zeininger.

At trial, the Massachusetts OUI attorney, argued that the Office of Alcohol Testing documents could not be admitted into evidence without the live testimony of a witness from OAT in order to preserve the defendant’s right of confrontation under the Sixth Amendment and the recent case of Melendez-Diaz v. Massachusetts. At a DUI trial, the Commonwealth generally subpoenas a packet of documents from the OAT that show compliance with the annual certification and periodic testing requirements of Massachusetts drunk driving law. The Commonwealth generally seeks to admit these documents into evidence as business records without live testimony from the Office of Alcohol Testing. The Zeininger case raised the issue of whether this practice satisfied constitutional requirements.

The Massachusetts Supreme Judicial Court held that the court undergoes a two part inquiry to determine whether out-of-court statements are admissible at a criminal trial. First, it determines whether the statement is admissible under a hearsay evidence exception and second whether it satisfies the requirements of the Confrontation Clause of the Sixth Amendment.

The SJC held that the OAT documents are made by a public official having a statutory duty to comply with a rigorous regulatory certification. The Court held that these records do not express any opinion but memorialize routine scientific measurements. Further, the court stated that the records qualify as business records because they were not created essentially for use in court, but pursuant to the mandates of Massachusetts statutes creating the regulatory scheme. Accordingly, the court held that the records are admissible under Massachusetts evidence law.

The SJC also rejected challenges to the admissibility of the OAT records based on the Sixth Amendment Confrontation Clause. The SJC held that the Oat records are not made for the purpose of proving some fact at trial but to comply with its statutory mandate.

As a Massachusetts OUI lawyer, the court’s decision is contrary to the United States Supreme Court’s Melendez-Diaz decision as the only purpose for the OAT records is to establish the reliability of the breathalyzer test at trial. But for the fact that breathalyzer results are used in court, there would be no purpose for the records or testing of the machine. Accordingly, the Court ‘s suggestion that the records are not prepared primarily for trial is simply incorrect.

Additionally, the SJC’s claim that the records the records memorialize routine scientific measurements is inconsistent with the language of Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009) which held that the Confrontation Clause is essential to ensure the reliability of scientific procedures in court. The SJC ignores the language of the Supreme Court in Melendez-Diaz by suggesting that the OAT testing procedure is simple so that confrontation is not required.

As a Massachusetts DUI lawyer, the court’s decision and reasoning is incorrect and contrary to the requirements of the Confrontation Clause as set forth in the United States Supreme Court case law. The United States Supreme Court is expected to release its decision in Bullcoming v. New Mexico by the end of the terms, which may undermine the SJC reasoning in Zeininger.
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The Massachusetts Supreme Judicial Court heard oral arguments on February 7, 2011 in the case of Commonwealth v. Zeininger, which was an appeal of a drunk driving conviction out of the Greenfield District Court. The defendants in the case filed an appeal with the Massachusetts Court of Appeals, which the SJC took on its own motion for direct view. As a Massachusetts OUI attorney, this decision could have an important implications for attorney defending drunk driving cases.

The defendant made three challenges to the admissibility of the breathalyzer test results. First, the defendant challenged the evidence presented by the Commonwealth to show that the breathalyzer machine was certified. Under the Massachusetts Supreme Court’s decision in Commonwealth v. Barbeau, 411 Mass. 782 (1992), in order to admit breathalyzer test results into evidence, the Commonwealth has to establish that the machine satisfies both the annual certification and the periodic testing requirements imposed by the Massachusetts regulation and the Barbeau decision.

The Commonwealth did not call a witness to prove the annual certification, but relied on the certification noted in the implied consent form. The implied consent form does not indicate who certified the breathalyzer testing machine. The Commonwealth can request a certification from the Office of Alcohol Testing, but it appears that the Commonwealth relied on the certification on the implied consent form rather than the full Office of Alcohol Testing documents that are certified by the Office of Alcohol Testing.

Preliminary breathalyzer test result, PBT, are inadmissible to prove a DUI offense in Massachusetts. Accordingly, if you failed a portable breathalyzer test the Commonwealth cannot offer that evidence to the jury.

A case from Wisconsin raised an interesting issue of whether a defendant can offer preliminary breathalyzer test results to show that the defendant’s blood alcohol level was lower at the time of driving. The DUI lawyer in this case retained an expert who used the results of the preliminary breathalyzer test to argue to the jury that the defendant was still in the absorption phase and his blood alcohol level was lower at the time of driving than at the time the breathalyzer test was given.

The answer to this question would seem to be yes, how can the state disclaim the scientific reliability of its own evidence and deprive the defendant of his right to present a defense and exculpatory evidence. The Wisconsin Supreme Court rejected this argument, relying on the intent of the legislature to limit the admissibility of portable breathalyzer test results.

The court’s ruling reconciles two Wisconsin Statutes – Wis. Stat. sec. 343.303 and Wis.Stat.sec. 907.03. Wis. Stat. sec. 343.303 expressly prohibits the use of a PBT to prosecute a motorist accused of operating a motor vehicle while intoxicated. On the other hand, Wis.Stat.sec 907.03. provides for the admissibility of expert opinion testimony regardless of the admissibility of the underlying data. The defendant contended that even though the portable breathalyzer is inadmissible that his expert’s opinion should be allowed because the expert relied upon it in reaching his opinion. The defendant attempted to draw a distinction between offering the PBT results. which he was not doing and offering testimony that relied on the PBT results. The court held that is no distinction and the statute prohibiting PBT results from being admitted into evidence would be violated by allowing the expert to rely on them in forming his opinion.

The Court held that the legislative policy was clear that portable breathalyzer test results are inadmissible. The court reasoned the legislative intent behind limiting the admissibility of PBT results “helps law enforcement officers do their jobs with more cooperation from drivers than they would otherwise be likely to get if the results were admissible in court. The court noted that a PBT may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest.

Similarly under Massachusetts law, preliminary breathalyzer tests are inadmissible. PBT have never been deemed scientifically reliable and as a result, may not be used as evidence against a defendant.

The Massachusetts courts have not addressed whether a defendant can offer the PBT. If this occurred in Massachusetts, the court probably would allow a defendant to offer the results of the PBT as the decision of the Wisconsin Supreme Court appears to deny the defendant his right to present a defense and cross examine the State’s evidence under the Sixth Amendment and Fourteenth Amendment to the United States Constitution.
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The admissibility of breathalyzer evidence in Massachusetts may be impacted by a confrontation clause case from Virginia that the United States Supreme Court agreed to hear for the upcoming term. Commonwealth v. Briscoe. The appeal in Briscoe concerns several cases that were consolidated and all raise the same issue of whether Virginia’s notice and demand statute satisfies the Constitutional requirements of the Sixth Amendment confrontation clause.

The Briscoe cases involves the issue of the admissibility of a drug certificate of analysis. Unlike the Melendez-Diaz case where the Supreme Court required live testimony, the Virginia statute only allows the certificate to be admitted if the State gives the defendant notice and demand of their intent to rely on the affidavit seven days prior to trial and files this with the court. The defendant is then given the opportunity to call the chemist as an adverse witness with the cost of the summons, incurring to the State.

The Melendez-Diaz decision suggested that States could enact law requires a defendant to assert the right of confrontation prior to trial, suggesting that notice and demand statutes would satisfy the Sixth Amendment requirements. Additionally, the Melendez-Diaz decision clearly indicated that the right of confrontation could be waived.

The Virginia statute appears contrary to the language of Melendez-Diaz and the court should strike it down, though it would be anticipated the decision would essentially direct states as to how to pass a Constitutional notice and demand statute. The flaw in the Virginia statute appears that it requires the defendant to subpoena the lab technician and call the lab technician as a witness in the defense case. In a criminal trial, the burden is always on the Government to call witnesses to establish the essential elements of the offense and the due process clause is violated by efforts to shift the burden to the defendant. The language of the Sixth Amendment also underscores that the Government has to call witness against the defendant to preserve the defendant’s right to confront witnesses against him.

In addition to the language of the Melendez-Diaz decision, the defense counsel’s brief in Briscoe depicts other flaw with the Virginia statute that the right to call the chemist as an adverse witness in the defense case is not the same as being provided with the opportunity for cross examination after the chemist testified as a witness on direct examination for the Government. Further, the defense brief points out that this essentially time saving procedure has no logical limitation and could be expanded to other cases not involving drug analysis, reverting back to the rejected concept of trials based on affidavit.

The United States Supreme Court should strike down the Virginia statute. Massachusetts has yet to enact any similar notice and demand statutes in DUI case or drug cases. The impact of the United States Supreme Court confrontation clause will have a major impact on the admission of breathalyzer evidence as the confrontation clause cases define how the Government must proceed to have documents regarding the accuracy and reliability of the breathalyzer machine placed before the court.

By the time Briscoe is decided by the Supreme Court, likely to be June 2010, there will be numerous decision from state courts applying Melendez-Diaz to the admissibility of breathalyzer evidence. The Briscoe decision is likely to shape the method by which states enact notice and demand statutes.
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