If you’ve been arrested for drunk driving in Massachusetts and your breathalyzer results were over the legal limit (0.08 or higher), don’t raise the white flag just yet. You may still have a defensible case.
There are a number of ways the breathalyzer results can be challenged or invalidated.
The test must be administered according to the state’s regulatory code, most specifically the Code of Massachusetts Regulations 501 CMR 2.00.
Here are a few key aspects of the breathalyzer regulations.
Certifications
Both the breath test device and the breath test operator must be certified by the Massachusetts State Police Office of Alcohol Testing (OAT).
The breath test device must be certified every year under 501 CMR 2.06.
While the breath test operator (typically the police officer administering the test) must be certified every three years. See 2.07(3).
If you take the breathalyzer, the police should give you a “Breath Test Report Form.” You should review the information on the form to confirm that both the breath test device and the breath test operator are in good standing.
Observation Period
If you agree to take the breath test, the breath test operator must watch you for at least 15 minutes prior to the test. See 501 CMR 2.13(3).
There are two reasons for the 15-minute observation period.
First, the breath test operator must make sure that you don’t put anything in your mouth that might contaminate the test results. (I once had a client take the breath test with a nicotine pouch in his mouth. Needless to say, that breath test result was thrown out.)
Second, the officer also needs to ensure that you don’t burp, hiccup, vomit, or do anything else that might cause regurgitation and skew the test. (You’d be surprised how many times these things happen and officers don’t restart of the clock.)
Failure to properly observe the arrestee for 15 minutes may be the number one challenge to breath test results.
For more see my post Mandatory 15-Minute Observation Period for OUI Breath Tests in Massachusetts
Calibration
The breath test is administered in the following order.
- You sign a written consent;
- The breath test operator observes you for 15 minutes;
- You blow into the breathalyzer for test #1;
- The breath test operator does a control standard analysis to test the machine’s calibration;
- You blow into the breathalyer for test #2.
- The lower of the two tests will be your breath test result.
The “control standard analysis” is typically done with a gas cylinder containing .08% alcohol. According to 501 CMR 2.11(2), the calibration test must show a result between 0.074% and 0.086% for the actual breath tests to be valid.
Along with your arrest paperwork you should receive a “Period Test Report.” This report will show the results of the calibration test.
If the calibration test did not conform to the CMR standard, your breath test results are likely invalid.
Variation Between Tests
As noted above, you blow into the breathalyzer twice and the lowest of the two tests constitutes your blood alcohol content.
The two breath test results must be within 0.02 blood alcohol content units of each other for the test to be valid. So, for instance, if your first test resulted in 0.08 BAC and your second test was 0.11 BAC the results likely inadmissible at trial.
See 501 CMR 2.14(4).
Again, this information can be found on your “Breath Test Report Form.”
Rising Alcohol or “Retrograde Extrapolation”
This one isn’t found in the CMR. But it’s certainly worth knowing about.
It usually takes an hour or two between your initial encounter with police and your breath test sample.
During that time your blood alcohol content is likely rising as your body metabolizes whatever you consumed before the police stop.
So if your BAC result is .08 or .09, it’s arguable that it was significantly lower (i.e., below the legal limit) an hour earlier when you were driving.
Prosecutors are not obligated to take this into consideration so long as the breath test was administered “within a reasonable period of time.” See 2.13(2). The reasonable period of time is typically anything less than 3 hours from the time of operation.
Nevertheless, it’s well recognized that an OUI defendant can employ an expert witness to challenge the breath test results based on the “rising alcohol” theory or retrograde extrapolation.” See Commonwealth v. Connolly, 394 Mass. 169, 175 (1985) and Commonwealth v. Smythe, 23 Mass. App. Ct. 348, 351-55 (1987).