The Kickham Comment - Boston Criminal Attorney Blog
Very recently, the Massachusetts Supreme Judicial Court (SJC) announced a ruling that will make it more difficult for defendants who are accused of a Massachusetts drunk driving/OUI offense to challenge the accuracy of Breathalyzer test results.
In a case that began in Greenfield District Court, a woman was convicted of operating under the influence in Massachusetts. When she was stopped by police, she agreed to take a Breathalyzer test, which produced a result higher than the maximum allowed in Massachusetts – an .08. Massachusetts is a “Per Se” state, meaning that breathalyzer or blood test results of higher than .08 for drivers over the age of 21, or higher than.02 for drivers under the age of 21, constitute prima facie evidence of driving under the influence in Massachusetts. At this woman’s trial, the Massachusetts breathalyzer test results were admitted into evidence, and the prosecution introduced records demonstrating that the particular breathalyzer machine had received an annual certification and was maintained and calibrated regularly as required under relevant Massachusetts regulations. The woman was convicted of driving under the influence.
She appealed her conviction, arguing that the maintenance and certification records introduced by the prosecution constituted witness testimony against her, and that under the Sixth Amendment to the U.S. Constitution, her lawyer should have been given the right to cross-examine the technician who had prepared the reports. The Sixth Amendment is often referred to as the “Confrontation Clause” of the Constitution , as it guarantees the rights of a defendant in a criminal trial to face his accuser and cross-examine that person in court.
But the SJC disagreed, ruling that Breathalyzer maintenance and certification records are not “testimonial”: in nature, and hence, do not trigger a requirement that the prosecution produce in court the person who prepared the records. Thus, the court ruled, there was no right to confront this person or conduct cross-examination of him/her.
As a Dedham/Boston Massachusetts OUI defense lawyer, this ruling strikes me as considerably inconsistent with the court’s fairly recent, and landmark, ruling in Commonwealth v. Melendez-Diaz. In that key ruling, the court ruled that in Massachusetts drug offense cases, prosecutors could not admit into evidence printed reports of drug analysis certificates that had been prepared by state drug lab chemists, without producing in court the chemist or technician who actually prepared the report(s.) The court’s reasoning was that these written reports were testimonial in nature, thus triggering a criminal defendant’s Sixth Amendment right of confrontation and cross-examination.
This ruling closes one more potential avenue of defense for drunk driving defendants, and only makes even more clear that anyone charged with a Massachusetts OUI offense, choose their lawyer very carefully. Expertise and experience always makes the difference in these cases – so don’t make a mistake in who you hire as your lawyer. We win these cases, because we know how to. If you’re facing a Massachusetts drunk driving charge, contact us for a free consultation.