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Tag Archives: breathalyzer

TENTATIVE AGREEMENT REGARDING BREATH TEST ADMISSIBILITY IN MASSACHUSETTS

Massachusetts defense attorneys and prosecutors have reached a tentative agreement, pending approval and modification by the court, regarding sanctions imposed against the government for refusing to disclose court-ordered evidence during state-wide litigation challenging the reliability of the Dräger 9510 breath test machines. Under a previous court order, breath tests results were presumptively excluded from evidence at trial if the machine had last been calibrated between June 1, 2011 and September 14, 2014. As a result of government misconduct, however, where ... Read More »

MASSACHUSETTS PROSECUTORS AND DEFENSE BAR CONTINUE BREATH TEST NEGOTIATIONS

District Attorney offices throughout the Commonwealth continue negotiations with representatives of the defense bar regarding the admissibility of breath test results at trial. Some possibilities include expanding the time of presumptively excluded breath tests to include all tests performed since the Dräger 9510 machines were put into service in 2012 through at least 2017. Another potential outcome is to give both prosecutors and defense counsel online access to all maintenance and service records for each machine. We expect that all ... Read More »

MASSACHUSETTS SUPREME JUDICIAL COURT CLARIFIES PENALTIES FOR DRIVING ON LICENSE SUSPENDED FOR BREATH TEST FAILURE OR REFUSAL

In Commonwealth v. Nascimento, SJC-12442 (June 5, 2018) the Massachusetts Supreme Judicial Court recently corrected a long-standing practice of the lower courts sentencing drivers operating on a license suspended for administrative reasons related to OUI (such as breath test failure or refusal) to the same mandatory jail time required for someone operating on a license suspended for an OUI conviction. The statute mandates a minimum sixty-day sentence for anyone convicted of operating on a license that has been suspended on ... Read More »

UPDATE ON THE CONTINUING CHALLENGE TO THE DRÄGER 9510 BREATH TEST MACHINE IN MASSACHUSETTS

The latest hearing regarding the Massachusetts defense bar’s challenge to the Dräger 9510 breath test machine was held by Judge Brennan in Concord on Thursday, February 15, 2018. At that hearing, both Brennan and the defense bar, represented by Joseph Bernard, expressed their dismay that discovery previously withheld by the government continued to trickle out or had even been lost “due to dysfunction at the OAT [Office of Alcohol Testing].” The government pressed Brennan for a schedule that would give ... Read More »

Are Women More Likely to be Convicted of DUI?

Arrest and conviction in a drunk driving case depends largely upon the breathalyzer or blood alcohol tests conducted on the suspect. If the test results are found to be .08% or higher, a conviction follows.  No distinction is made, of course, as to whether that suspect in the DUI case is a man or a woman. But what if it takes less alcohol for women to reach .08% blood alcohol than it does for men? Researchers at the University School of ... Read More »

DUI Technology—The DRUID App

The effects of alcohol intoxication are relatively well-known, and they are also relatively universal among different people. The amount of alcohol concentration in one’s bloodstream that causes these effects differs among each of us (e.g. tolerance). Moreover, the amount of time it takes to experience these effects is dependent upon a number of factors such as how quickly the alcohol is consumed, the amount of food in one’s stomach, etc. Nonetheless, all states[1] in the U.S. have adopted the 0.08% ... Read More »

MASSACHUSETTS CLOSER TO REQUIRING IGNITION INTERLOCK DEVICE FOR ALL OUI/DUI OFFENDERS

The Massachusetts Senate approved a measure that would require an ignition interlock device for all drivers found to be operating under the influence of drugs or alcohol. Massachusetts is currently the only New England state that does not require the device for first offenders. The measure is now in the House where a representative of Mothers Against Drunk Driving testified in support of the legislation that is similar to laws enacted in 30 other states. The law would replace the ... Read More »

MISCONDUCT AT MASSACHUSETTS STATE POLICE LAB RESPONSIBLE FOR BREATH TEST MACHINES

Mounting problems at the Executive Office of Alcohol Testing (“OAT”), the Massachusetts State Police crime lab responsible for the use of the Dräger Alcotest 9510 breath test machines, have triggered the firing of Melissa O’Meara, head of the OAT. A report disclosed Monday found that “OAT leadership made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive ... Read More »

STATE POLICE CRIME LAB WITHHELD EXCULPATORY EVIDENCE

The Massachusetts State Police Office of Alcohol Testing (“OAT”) intentionally withheld documents showing breath test machines may have provided at least hundreds of flawed results, according to defense attorneys. This latest revelation could ultimately affect over 58,000 cases since 2011, when the Commonwealth first began using the Dräger 9510 machines. As a result, District Attorneys throughout the Commonwealth have again suspended the use of breath test results in trials and plea negotiations. Furthermore, the Secretary for the Executive Office of ... Read More »

To Blow or Not to Blow: Tennessee’s 2017 Implied Consent Law – Part 2

This is the second in a series of blog posts about recent changes to Tennessee’s Implied Consent Law.  If you missed Part 1, you may read it here: “To Blow or Not to Blow: Tennessee’s 2017 Implied Consent Law –  Part 1.” As discussed in Part 1, effective July 1, 2017, Tennessee made sweeping changes to its Implied Consent Law in an apparent attempt to comply with the recent U.S. Supreme Court decision, Birchfield v. North Dakota, 136 S.Ct. 2160 ... Read More »