Big news broke last week that district attorneys in Essex, Middlesex, and several other counties are suspending the use of breath test evidence in court. The Suffolk County District Attorney's Office has only said it will be seeking continuances on breath test cases for now.
We still don’t even know exactly what prompted the district attorneys of most of Massachusetts’ counties to halt using breathalyzer evidence in current cases. An investigation is pending by the Massachusetts Executive Office of Public Safety and Security. News reports have suggested there are serious questions about the accuracy of at least some breathalyzer results that have been used in court.
But it is very clear that there are extremely serious questions about this evidence. It is a very big deal for district attorneys to voluntarily take this action. Breath test evidence is very important in convicting people of drunk driving (OUI under Massachusetts law).
The questions appear to be around how the machines are calibrated, but we still don’t know exactly how widespread any machine problems identified may be.
How do breath test machines (“breathalzyers”) work?
The standard of intoxication set in Massachusetts and nationally is .08% BAC (Blood Alcohol Content), but how do you determine alcohol content in the bloodstream by blowing into a tube?
Well, you don’t. The tests rely on some assumptions, and compare alcohol in your breath to what they think, or calculate, is approximately what is in your bloodstream.
What they do is a chemical approximation based on the alcohol content of the breath from the alveoli sacs deep in your lungs. Those sacs are where the alcohol is diffused from you blood stream into your breath - that is one of the ways that alcohol eventually leaves your body.
Breath test machine manufacturers have estimated a ratio that 2100 ml of air from deep in the lungs will contain the same amount of alcohol as a 1ml blood sample. That number, the partition ratio, is controversial, in that it is just an average, and the actual number that can vary widely based upon the specific physiology of different people.
OUI attorneys like myself have long argued that there are numerous other flaws with breathalyzer machines, largely because of this unnecessarily complex scientific approximation of breath alcohol to blood alcohol.
Experts say false positives from these results are very possible because other substances can spoof the chemical profile of alcohol to these machines, including breath sprays, tobacco, and asthma medications.
Breath test data is easy to introduce, and hard to refute
For breath test machine evidence to be introduced in court, the prosecution is required to document the regular maintenance and recent successful calibration of these machines.
Part of the calibration process is to make sure that the machine is accurately reading a pre-tested sample of simulated breath with .08% BAC.
If evidence of breathalyzer accuracy has been found to not even meet the prosecution’s simple standards in these recent cases - that is an incredibly low bar, and reason for this widespread shutdown.
Evidence of breathalyzer results has always been extremely easy for the state to introduce, and very difficult for defendants to refute.
Because of the per se law, if the state is able to prove that the person blew a .08% on a breathalyzer, that is sufficient evidence to find a person guilty of drunk driving, regardless of whether a person displayed any other signs of impairment.
So defendants need to hire a breath test machine expert to testify at trial why that number may not be accurate to have a realistic chance of beating a drunk driving case with a breath test failure as evidence. With expert and lawyer fees, that means it can cost $10,000 or more just to fight a case in court.
Why don’t they just draw your blood and test that instead?
An actual blood sample is the only truly accurate way to determine alcohol content in the bloodstream. The reason they don’t use that, of course, is that cops aren’t qualified to take your blood, nor do they typically have the authority to perform such an invasive procedure on a person without a warrant.
Actual BAC results sometimes do get collected in accident cases when hospitals collect blood samples in the normal course of providing medical services.
This is why you should almost always refuse to provide a breath test sample for the police.
It is nearly always a mistake to provide evidence to the police that they will almost certainly be using against you, unless you are 100% certain you are not impaired.
And Massachusetts courts have declared that the refusal itself to provide a breath sample is not something that can be used against you in court. The fact that you refused the test cannot be brought up in court, and won’t be known by a jury.
But the problem with breath test refusals is that the Registry of Motor Vehicles will instantly suspend your license for 180 days just for the refusal. And there is no way to get your license back until you are found not guilty, or plead guilty and work out a deal for a hardship license.
You are effectively punished before you are ever convicted of a crime, or can possibly be affording the opportunity to defend yourself.
That is the state of OUI law in Massachusetts, and across the country. And it’s a big reason why there are so many plea deals. It is very hard for most people to be without a driver’s license for the 6 months or more it can take to go to trial on an OUI. So people with winnable cases, with or without a breath test failure, often choose to just plead guilty.
Highly questionable state’s evidence in criminal cases is nothing new
Massachusetts has been front and center in evidence scandals in recent years, with the case of state chemist Annie Dookhan, who falsified evidence in as many as tens of thousands of drug cases.
So district attorneys are understandably nervous about another black eye,and loss of faith in the criminal prosecution process by the public.
And they have a right to be worried. The supposed accuracy of forensic and criminal evidence of all kinds has been collapsing for years.
Just last week there was a stark admission that the FBI labs wildly overstated the certainty of hair evidence comparative analysis in cases going back decades.
We have seen how evidentiary procedures can be incredibly sloppy in the most serious cases. So it is more than reasonable to assume that in cases where people are arrested for relatively minor crimes with no media coverage and basically no one paying attention, cops and prosecutors can push through an even wider variety of thin evidence and testimony.
So what’s the answer?
As a country, there is a growing consensus that we simply don’t have to imprison and punish so many people for criminal charges.
In Massachusetts, there is an effort to stop suspending people’s driver’s licenses for drug cases unrelated to driving.
But there is very little effective remedy for those who may have been wrongfully convicted of drunk driving due to possible faulty breath test evidence.
For people who have already plead guilty when they could have effectively challenged the BAC number, there is not much they can do. They’ve already been punished with license loss, probation, and more. Even if convictions end up getting vacated from this, it isn’t likely to have a meaningful impact on most people going forward.
Why not more evidence that can be objectively viewed by laymen?
In drunk driving cases in particular - other than breath test results, the primary evidence is almost always officer's testimony about whether or not the defendant appeared impaired.
So why can’t juries simply see exactly what the officer saw? Why doesn’t every cruiser have a dashboard camera? Why doesn’t every officer have a body camera? Did the defendant really look and sound as drunk as the officer said?
We have seen the explosion of police videos online in recent years, particularly in terrible tragic cases of police shootings. Far too often, they tell a completely different story than what the officers have claimed.
Many police stations do have video in the booking room. And in my experience as an attorney, I’ve found that it is actually quite often helpful to my clients to show the video to juries in drunk driving cases. The defendant frequently does not appear nearly as drunk as the description the officer provides in his sworn testimony.
No one should be afraid of letting jurors and regular citizens directly evaluate the simple objective truth via direct video evidence wherever possible.
Russell Matson is a drunk driving and criminal defense lawyer in Braintree, MA. He represents clients on criminal matters across Massachusetts. His web site is http://www.madrunkdrivingdefense.com