Articles Posted in OUI/Drunk Driving

The Office of Alcohol Testing (OAT) has now been involved in a scandal for several years for its inadequate testing and withholding of breathalyzer certifications relating to the Alcotest 9510 device. The Alcotest 9510 has been under scrutiny since 2017 when Draeger Safety Diagnostics, the manufacturer of the breathalyzers, called several thousand devices into question. The company admitted in court testimony that the device was improperly programmed, leading to incorrect values and affecting the accuracy of blood alcohol concentration (BAC) for OUI-related breath testing.

In Massachusetts, the maximum BAC if 0.08% for drivers over the age of 21 and 0.02% for drivers under the age of 21. In many cases, the driver’s punishment of a fine or even jail time is dependent on the number that appears on this little black box. As more than 1 million Americans are arrested for OUI each year, faulty breath testing is a huge issue in the state of Massachusetts, and everyone has an interest in guaranteeing that these tests are as accurate as possible.

The Alcotest 9510 uses two sensors to measure alcohol content in a driver’s breath: an infrared beam and an electrochemical fuel cell. The results of the two measurements should be almost identical, but if the results differ too much, the test should be rejected due to the potential for inaccurate readings. The issue with this device is that is does not shut down when values are too far apart, and inaccurate readings are instead treated as an indication of drugs or alcohol in the driver’s system. After an inspection of 400 machines in 2017, not a single machine was programmed correctly. Up to 20% were likely to produce false positive values for BAC, information which OAT was intentionally withholding. This means that the machine may display an illegal BAC reading when the driver is not actually over the legal limit.

In February 2017, the court ordered tests dating back to June 2011 be assumed inaccurate and excluded from evidence pending a demonstration on a case-by-case basis that the device was reliable. In January 2019, the court ordered that OAT comply with new standards and be on track for accreditation before this ban would be lifted. This presumptive exclusion was lifted on April 18, 2019, despite the fact that Draeger had not updated 90% of its machines. Breath tests can now be used as evidence for OUI charges in the Commonwealth, but the prosecution will have to demonstrate that the device used complied with OAT’s new standards.

New issues have surfaced recently. Kristen Sullivan the director of the State Police Crime Laboratory released a statement on June 10 revealing that over 400 breath-test or over-limit test results sent to the RMV had required sections left blank. On both types of reports, the sections included a certification that the officer preparing the report was the one that refusal was made to or who administered the test, as well as acknowledgement that the report was prepared under penalty of perjury. OAT found that 435 of these reports were incomplete or improper since the device went into service in 2011. Joseph D. Bernard, the lead attorney in the original case, has called for Gov. Charlie Baker to remove all devices from service until these inconsistencies can be resolved. Continue reading

In Massachusetts, if you are stopped by police on suspicion of operating under the influence (OUI), there’s a good chance that you will be asked to submit to a breath test. This test measures the concentration of alcohol in your blood, also known as your BAC. You can refuse to take the test, but there are consequences for doing so. Namely, you will face an automatic, six-month license suspension. That being said, a reading above 0.08 percent will likely carry an even stiffer penalty.

Most folks have heard of a breathalyzer test, and know that a BAC below 0.08 percent is the legal limit in MA. But notably fewer understand the different methods used to measure BAC, their accuracy, and how to challenge results in court. The FAQs below provide answers to all of those questions, and more. A Boston OUI defense attorney can help you determine how to proceed if you have been charged with OUI.

How is BAC Measured?

Although the breathalyzer (breath test) is the most commonly used method for measuring BAC, it is far from the only one. In fact, a total of five bodily samples can be screened for BAC. These are breath, blood, hair, saliva, and urine. Having someone blow into a tube is much less invasive than, say, collecting urine or blood samples. As a result, breath tests are far more likely to be used by law enforcement during an OUI stop. Although saliva tests can be administered in an equally non-invasive manner, they are less common than breath tests. This is likely due to the ease of administering a breath test, and the fact that it doesn’t require the handling of bodily fluids (saliva).

How Does a Breathalyzer Work?

There are various types of breathalyzer machines. While some use the “wet chemical” technique to measure BAC, the most common technique, infrared spectroscopic analysis, measures the content of alcohol in exhaled vapors. These vapors absorb light waves of a specific frequency based on the concentration of alcohol. A computer, in turn, translates this information into a BAC measurement.

Can You Trick a Breath Test?

If you are actually intoxicated, none of the myriad “tricks” circulating out there can help you beat the test. Regardless of how many breath mints or onions you eat, or if you hide a penny under your tongue, the breath test will know if you are drunk. Some rumored methods of beating the test, such as gurgling with mouthwash, can actually raise your BAC.

Are Breath Tests Always Accurate?

Definitely not. However, breathalyzer results are widely accepted as accurate by law enforcement and most courts. The reality is, breathalyzer readings can be off by up to 15 percent when compared to a more accurate blood draw. Courts have thrown out plenty of breath test results since their inception, but fighting an over-the-limit reading requires the assistance of an experienced, and highly-skilled MA OUI defense attorney.

Can I Fight My Test Results in Court?

Of course you can. There are multiple regulations surrounding the use and maintenance of breath tests. A skilled lawyer can analyze the details of your arrest, and the device’s maintenance records, to determine if all regulations were followed to a T. Readings can vary based on the device’s temperature, the individual’s body temperature, the presence of hematocrit in the blood, poor device maintenance, and an improperly calibrated device. Continue reading

In MA – and all states – a blood alcohol content (BAC) of .08 percent or higher will likely result in an OUI or DWI conviction. If you happen to be under 21 at the time of your arrest, you can be convicted if your BAC is .01 percent. And the penalties for even a first-offense OUI can wreak havoc on a person’s life.

Do Any of these Scenarios Sound Familiar?

Fortunately, there are multiple defenses against drunk driving charges. Maybe the breath test readings were inaccurate, or maybe you were never read the Miranda warning. Although an  above-limit breath test reading is difficult to challenge, it is not impossible. If any of the scenarios below sound familiar, an experienced MA OUI defense attorney may be able to get your charges reduced, or dismissed entirely.

• No probable cause: If police stopped your vehicle and arrested you for OUI without probable cause, any evidence may be inadmissible in court. There are some exceptions to the probable cause rule, however. Namely, checkpoints and roadblocks.
• No Miranda warnings: If you were taken into police custody but weren’t read the Miranda warnings prior to questioning, any statement you made likely cannot be used against you.
• The officer failed to warn you that refusing a breath test would result in an automatic license suspension: If you were never warned of this consequence, breath test results may be inadmissible in court.
• The breath test was administered incorrectly: If the officer did not comply with state requirements dictating how the breath test should be maintained and calibrated, the test results may be thrown out.
• Inaccurate test results: Test results may also be inadmissible if a faulty machine, an incompetent technician or other circumstances created the potential for error. Breath test machines can give inaccurate readings due to certain foods and medications. For example, taking a non-impairing prescription drug prior to the test could lead to a misleading result.

The above defenses have the best shot at being successful with the help of an experienced Boston OUI defense attorney. Even a first-offense OUI can lead to license suspension, the installation of an Ignition Interlock Device (IID), hefty fines and jail time. Don’t make the mistake of thinking that an attorney is not necessary. The right legal counsel can be the difference between a clean record and time behind bars.

Penalties for OUI Offenses in MA 1st Offense – Up to 30 months in jail and fines of up to $5,000

2nd Offense – Up to 30 months in jail and fines of up to $10,000

3rd Offense – Up to five years in jail and fines of up to $25,000

In addition to the above penalties, an OUI conviction also carries a license suspension and – in some cases – the need to install an IID in your vehicle. For a first offense, the standard license suspension is one year. For a second offense, you will lose your license for two years, and a third offense will result in an eight-year license suspension. Long story short, don’t drink and drive. But if you made a mistake, hire an experienced attorney today. Continue reading