Can I win My Massachusetts OUI Case if I Failed the Breathlyzer Test?

Failing a breath test does not mean that your Massachusetts OUI case cannot be won at trial. There are a number of different ways to defend a case with a failed breath test result of over .08. You can review the case results on this webpage to see numerous clients who have avoided an OUI conviction despite registering over .08 on the breath test.

Compliance with the 15 minute Observation Period

1. The Commonwealth will need to produce your breathalyzer test results as evidence at trial. This will require the government to prove compliance with a 15-minute observation period. These requirements are very particular, and often the government is unable to meet the burden of proving the test was conducted properly. When this happens, the breath test results are excluded from evidence and not known to the jury when deciding the case.

2. The government will also need to produce documents demonstrating the annual certification and periodic testing of the machine is complete. This requirement is sometimes not met due to the following factors:

   1. A faulty machine

   2. Failure of the district attorney to request documents in a timely manner and;

   3. Failure of the government to call the correct witnesses to testify the machine was properly maintained.

Expert Testimony to challenge the accuracy of the Results:

3. An expert witness can help defend your case by challenging the accuracy of the results, or by presenting testimony that establishes a problem with the machine, a medical defense, or any other number of reasons why a jury should disregard your test. Expert testimony may also assist with explaining the science behind breath test evidence, the assumptions made by the machine and the reasons why the results can be inaccurate.

Margin of Error Defenses

4. When the breath test results are close to .08, an argument can be made that given the margin of error of the machine the results were not above the legal limit.

Motions to Suppress Evidence

5. You may challenge the basis for your stop. If for any reason there was not a lawful basis to stop your motor vehicle, a breathalyzer test will be excluded along with any other evidence in the case.

Right to an Independent Medical Exam and Release on Bail

6. If the officer did not inform you of your right to an independent medical exam, then the breathalyzer test results will be suppressed.

These are just some of the ways an OUI case can be won, even if you fail the breathalyzer test. The important thing to remember is that failing your breathalyzer does not mean you will automatically lose your case. You need to call an experienced attorney who has successfully defended breath test cases. You can reach Attorney Michael Delsignore at 781-686-5924 or 508-455-4755.

You may also visit the Client Testimonial Page to read about testimonials from clients who won their case despite a breath test over .08.