Massachusetts SJC Considering Stronger Testimonial Requirements for Breathalyzer Tests In OUI Cases

In June 2009, the U.S. Supreme Court (SCOTUS, among the legal profession,) issued a landmark decision in the area of testimonial evidence in drug prosecutions, Melendez-Diaz v. Massachusetts. The ruling in that case essentially held that certificates of drug content analyses produced by a laboratory at the request of the prosecution, and introduced into evidence by the prosecution to prove what that substance is, are inadmissible without the in-court testimony of the laboratory technician who conducted the testing. Such drug analysis certificates are attached to an affidavit, signed by the chemist or laboratory technician who conducted the testing, stating that the analysis report is accurate.

Up until this ruling, prosecutors in Massachusetts who were trying Massachusetts drug offense charges, would simply introduce the lab results along with the affidavit of the technician who conducted the test, and the results would be admitted into evidence as conclusive as to what the substance actually is.

This ruling changed that procedure, and was a considerable blow to prosecutors trying drug cases, because it meant that each and every time the prosecution intended to introduce a drug analysis certificate into evidence to prove that the substance was an illegal drug, they henceforth had to bring in the actual chemist or technician who conducted the test, to testify as to the details of the testing. The court ruled this way, because it determined that the absence in court of the actual person who conducted the drug testing, violated the Sixth Amendment’s “Confrontation Clause” guarantee. This provision of the U.S. Constitution safeguards the right of a defendant to confront the witnesses against him, in person. The question that the court grappled with was whether the affidavits that accompany such drug analysis certificates are “testimonial,” thus rendering the affiants “witnesses” who would be subject to the defendant’s right of confrontation under the Sixth Amendment . The court answered “yes” to both questions. Now, in prosecutions involving Massachusetts drug offenses, prosecutors must bring the lab technicians who conducted drug analyses, into court for cross-examination by the defendant’s attorney. As a Dedham, Massachusetts drug offenses lawyer, I think this is extremely important, because through the cross-examination process, information can be brought before the jury as to such important items as: The technician’s education, training and experience; The method and technique that was used to test the substance; Prior testing errors that the technician may have previously been involved in; How many tests had he or she conducted on the day that the contested sample was tested; as well as several other areas.

Now, the Massachusetts Supreme Judicial Court (SJC) is weighing whether such in-court testimony should be required of Breathalyzer results that are introduced by prosecutors in cases that involve a Massachusetts OUI/DWI charge. The case is Commonwealth v. Zeininger, and was an appeal of a drunk driving conviction produced at the District Court level. After the defendant appealed to the Massachusetts Appeals Court, the SJC reviewed the case directly on its own motion. As background on trial procedure in Massachusetts DUI cases, in order for the Commonwealth to properly admit breathalyzer test results into evidence, the prosecutor is required to establish that the Breathalyzer machine that was used complies with both the annual certification and the periodic testing requirements imposed by a prior Massachusetts decision, Commonwealth v. Barbeau, 411 Mass. 782 (1992), as well as regulations promulgated by the Massachusetts Office of Alcohol Testing. In the Zeininger case, prosecutors did not call a live witness to testify to the annual certification of the machine, but instead relied on the certification noted on the implied consent form.

On appeal, the defendant essentially claimed that a certification form that is contained within the Consent Form that someone signs when they take a Breathalyzer test, absent the opportunity to confront the actual person who certified the Breathalyzer machine, violated his right to confront witnesses against him in similar fashion to the holding in Melendez-Diaz.

As a Dedham Massachusetts OUI/DWI attorney, I anticipate that the SJC will rule that the prosecutors must at a minimum introduce certification from the Office of Alcohol Testing concerning the particular Breathalyzer unit being challenged, and hold that the Commonwealth cannot rely solely on a notation on the implied consent form that the machine was, in fact, validly certified.

A second, and important, issue in this appeal is whether the police officer was properly allowed to testify as an expert concerning the breathalyzer machine. Over the objection of the defendant’s attorney, the District Court trial judge permitted the police officer to testify that the breathalyzer was functioning properly, Legally, I think this was impermissible because the prosecutor stated that his only training with the Breathalyzer machine in question was to administer tests, no evidence was introduced that qualified him to make a determination if the Breathalyzer was functioning properly.

I’ll keep you posted on developments related to this much-awaited SJC ruling.