Massachusetts Criminal Defense Lawyer Blog

Massachusetts DUI evidence and the impact of Briscoe on the right of confrontation

September 9, 2009 | by Michael DelSignore

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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Massachusetts OUI roadblock upheld by Supreme Judicial Court

July 24, 2009 | by Michael DelSignore

A Massachusetts OUI roadblock conducted in Quincy was upheld as Constitutional by the Massachusetts Supreme Judicial Court in the case of Commonwealth v. Murphy. The DUI lawyer in Murphy argued that the roadblock was unconstitutional under Article 14 of the Massachusetts Declaration of Rights because it gave the officer unchecked discretion to order a driver from the follow of traffic and into the sobriety checkpoint where further inquiry into the drivers ability to operate a motor vehicle will be conducted.

In the case of Commonwealth v. McGeoghegan, 389 Mass. 137 (1983), the Massachusetts Supreme Judicial Court held that sobriety checkpoints are reasonable under the Fourth Amendment and Article 14, as long as the selection of motor vehicles to be stopped is not arbitrary, safety is assured, motorists’ inconvenience minimized, and assurance must be given that the procedure is being conducted pursuant to a plan devised by law enforcement supervisory personnel. The United States Supreme Court held that DUI roadblocks are permissible under the federal constitution in Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990).

In Murphy, the trial judge found that the State police protocol and guidelines along with the instructions from the Major did not provide neutral criteria by which to direct cars from the follow of traffic. Accordingly, the judge found that the Quincy roadblock was contrary to the Massachusetts DUI roadblock case law and therefore a violation of Article 14 of the State Constitution.

The Massachusetts Supreme Judicial Court, reversed the trial judge, holding that although there is some potential for abuse by officers, the requirement that an officer have reasonable suspicion to direct a driver from the flow of traffic is sufficient to provide object criteria to satisfy Article 14 of the State Constitution.

The court suggested that it would require the officers to greet each vehicle the same as set forth in the roadblock plan. In the Murphy case, the officer was instructed to make a brief and courteous statement to the operator of the motor vehicle, such as Good Evening, this is a State Police Sobriety checkpoint, we are checking all operators for sobriety. If the officer observes any articulable sign of possible intoxication, impairment or contraband, then further inquiry should be made at the designated screening area. The Court held that the guidelines used by the State police in the Quincy area where less intrusive than the guidelines upheld in prior cases that allowed inquiry into alcohol consumption if signs of impairments, glassy eyes, odor of alcohol and slurred speech were present.

The Murphy case supports DUI lawyers raising motions to suppress challenging the reasonable suspicion of ordering the driver from the flow of traffic and the propriety of questioning regarding alcohol consumption, depending on the language of the roadblock plan. The SJC should have followed the lead of the trial judge in Quincy and required supervisory officers to provide more detailed and objective criteria that must be followed before directing someone from the flow of traffic. Because a Massachusetts OUI charge is a crime of opinion that someone is impaired, the Constitutional protections of being free from unreasonable searches and seizures should require the State police to set forth specific criteria to guide an officers discretion. One officer may feel that a mere odor of alcohol is enough; another may feel odor should be combined with other signs of impairment. The trial justice was clearly correct in recognizing the potential for officers to make arbitrary decisions as to who to direct from the flow of traffic. Issues regarding roadblocks will continue to confront trial judges trying to balance current case law against constitutional requirements.
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Defense to the breathalyzer in Massachusetts and the partition ratio

July 11, 2009 | by Michael DelSignore

Massachusetts has two methods for a prosecutor to prove a DUI case in court. First, the prosecutor can proceed under the per se prong of the Massachusetts DUI statute, Chapter 90 Section 24 and submit evidence that the breathalyzer result was over the legal limit of .08. This is known as the per se law. A second method of proof is to present evidence that the defendant’s operation was impaired by the affects of alcohol to the extent that the defendant could not operate a motor vehicle safely. Under the impairment prong, the evidence consists of the officer’s observations of the motorist’s speech, appearance, balance and coordination as measured by the field sobriety tests and mental alertness as indicated by responses to the officers questions and ability to follow instructions.

The Massachusetts OUI law, Chapter 90 Section 24 provides that in any prosecution evidence of percentage of weight of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of breath, shall be admissible and deemed relevant to the determination of the question of whether the defendant was operating under the influence of alcohol.

A major DUI decision was issued by the California Supreme Court in People v. McNeil on July 9, 2009. The California Supreme Court addressed whether a defendant could present evidence on the partition ratio in a case where the Government charged a defendant with both violating the per se prong and impairment prong of California’s DUI law.

The Court explained the science behind breathalyzer testing relying on a treatise from Attorneys Taylor and Taynac from California. The court explained that when a person blows into a breathalyzer machine, the breathalyzer is measuring deep lung air from the alveolar. From this measurement of breath alcohol, a blood alcohol percentage is obtained through a mathematical constant using a theory of chemistry known as “Henry’s Law”. The breathalyzer machines in Massachusetts and throughout the country use a conversion factor of 2100 to 1, which means that the amount of alcohol in 2100 milliliters of alveolar breath is equivalent to the amount of alcohol in one milliliter of blood.

One defense that DUI lawyers pursued in McNeil and that is also available in defending a Massachusetts OUI charge is whether that assumption regarding the conversion ratio of breath to blood alcohol percentage is accurate for the person being tested. The conversion ratio for individuals will vary depending on body temperature, medical condition and sex, as well as a number of other factors. The ratio used by the breathalyzer machine was considered a rough estimate.

DUI lawyers attacked the accuracy of the breathalyzer test that is was unfair to group everyone together on a machine that would make unfair assumptions regarding an individual’s partition ratio. Accordingly, the legislature amended the California DUI law to remove this defense by defining the DUI offense as failing the breathalyzer test despite the assumption of the machine. The law defined the DUI offense as being based on grams of alcohol per 210 liters of breath. Accordingly, the California courts precluded defendants from presenting evidence of the partition ratio on the grounds that the new law made the difference irrelevant.

The McNeil case hold that when the Government is pursuing a conviction both based on the per se portion of the law and the traditional impairment approach, relying on observations, field tests and opinion testimony, then the defense can introduce evidence challenging the assumptions behind the breathalyzer and evidence regarding the partition ratio. Significantly, the court indicated that it would allow evidence of the general impact of the partition ratio not related specifically to the defendant into evidence.

Partition ratio evidence has never been ruled inadmissible in Massachusetts and given the language of the Massachusetts OUI statute it would be difficult to foresee Massachusetts courts excluding the evidence from the jury. A partition ratio defense could be presented by retaining an expert to offer an opinion as to what a particular individuals breath to blood alcohol conversion ratio is or it can be used to attack generally the theoretical foundation behind breathalyzer testing and the fact that the machine is making generalized assumptions to obtain a specific reading. The theory behind a partition ratio defense is to convince the jury that the standard formula assumed by the breathalyzer machine overstates an individuals blood alcohol content. This will occur when an individual has a lower partition ratio than assumed by the breathalyzer machine.
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