The Massachusetts Appeals Court ruled today that the breath test operator does not have to watch the defendant to be in compliance with the 15 minutes observation period.  This ruling is contrary to the regulations requiring that the breath test operator observe a defendant for 15 minutes.

This decision arose out of a motor vehicle homicide case and is likely to be appealed.  The Appeals Court’s decision is contrary to the regulations and disregards the fact that a breath test operator has special training to determine whether someone is under the influence of alcohol.  The decision of the Appeals Court is Commonwealth v. Leary.

The burden of the Commonwealth to prove compliance with the 15 minute observation period is not very difficult.  A breath test operator should be able to watch the person taking the test for 15 minutes.  There are a lot of issues with the reliability of breath test machines that are being litigated as part of the consolidated litigation before Judge Brennan.  It was recently revealed that there were serious discovery violations during this litigation.  To lessen the requirement of admissibility was an unfortunate decision for the court when the regulation could not be more clear.  As a Massachusetts OUI Lawyer, this decision can be distinguished; it appears as though the Court may have been making inferences from the video in the case.  There is no indication from the opinion what role the other officers had during booking.  If this case is affirmed, it can be distinguished based on the facts this decision was based on.