Invalid Operating Under Breath Tests

On June 4, 2014 the Massachusetts Appeal Court confirmed that any breath test given in an operating under case, where the two test results vary by more the .02 is invalid and can’t be used in court. The required practice is that when the police give a breath test to a suspect they must give the test once, clear the machine, test the machine with a known alcohol sample, and then given a second test. If the two sample are more then .02 apart the machine is deemed to be operating improperly and the result cannot be used in court. In Commonwealth v Hourican  the police used a machine that read out breath readings three places. Hourican blew a .022. The prosecution tried to argue, unsuccessfully, that the .02 standard should include a .022 but the .002 overage was enough to invalid the test given. In other words, a reading over .02 really meant a reading over .02.

It comes as a surprise to many people that when a breath testing machine is not giving consistent readings to the same person, within a very short period of time, that the result is ever admissible in court and that a variance of .02 is not considered a reason to invalidate the test.

Of course, the best course of action for anyone stopped for OUI is to refuse to perform any field coordination tests that the police ask you to perform. You are under no legal obligation to do so. After providing your identifying information you should also refuse to speak. Remember you are not entitled to your Miranda rights until the moment of your arrest and the police will delay that moment for as long as they can while trying to get you to provide information they will use to prosecute you. After you are arrested the question of whether to agree to submit to a breathalyzer exam is more complicated as for first offender, the period of license loss can be greater for a refusal then blowing over a .08. For more information about Massachusetts Operating Under law please go to our web site at https://www.kobanlaw.com/drunk-driving-oui