Breath Testing

Defending Against a Breath Test Result

If you are arrested for OUI in Massachusetts, the police will likely ask you to submit to a breath test. The police may make this request pursuant to the implied consent law. The Massachusetts implied consent law, G.L. c. 90, § 24(1)(f)(1), requires any person who operates a motor vehicle to submit to a “chemical test” to determine their blood alcohol content (BAC) if they are arrested for operating under the influence. In Massachusetts, the police can ask you to submit to either a breath test or a blood test to determine your BAC.

A breath test is considered a search and seizure under the Fourth Amendment of the United States Constitution, which protects your right to be free from unreasonable searches and seizures. Due to this constitutional protection, the Fourth Amendment requires a police officer requesting a breath test to either obtain a warrant or meet one of the exceptions to the warrant requirement. However, the Supreme Court of the United States has held that a police officer need not obtain a warrant because breath testing categorically falls into the warrant exception of a search incident to arrest. Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).

Generally after an arrest, the police administer a breath test. If your breath test result is a 0.08% BAC or higher, you will be charged with drunk driving and will suffer license consequences. If you refuse to submit to a breath test, or if you are under the age of 21 and fail or refuse a breath test, you will be subject to additional license suspension penalties.

However, a breath test result is not infallible. There are certain procedures that the Office of Alcohol Testing (OAT) and the police must follow in order for a breath test result to be deemed scientifically reliable and valid. If OAT or the police fail to follow these protocols, your breath test result may be excluded from evidence.

How Does Breath Testing Work?

A breathalyzer is designed to measure the alcohol level that is contained in your “deep lung air.” This is the air that is in direct contact with the blood and therefore theoretically most accurately reflects the actual alcohol level in your blood. The lungs are composed of air sacs, i.e. alveoli, which come into contact capillaries carrying blood. Alcohol travels within your capillary blood, and once it is carried to the lungs, it diffuses into the alveoli. Once it diffuses into the alveoli, the alcohol is exhaled on your breath. This is known as alveolar or “deep lung air.”

Breath testing machines in Massachusetts are required to distinguish between “mixed air” and “deep lung air.” “Mixed air” is “deep lung air” mixed with air from the mouth, throat and upper lung. Mixed air may provide a lower BAC reading. While a sample of the “deep lung air” should accurately reflect the alcohol level in the blood, the reading is only as accurate as the testing device and the calculations assumed by the breathalyzer.

Breath Test Requirements

If you are being prosecuted with a breath test result, it is imperative to investigate whether the result is scientifically reliable and valid. In Massachusetts, a prosecutor can prosecute an OUI charge based upon a breath test alone. If you are charged under the per se portion of G.L. c. 90, § 24, the prosecutor is not obligated to provide any other evidence against you, such as bad driving or poor performance on field sobriety tests. If you submitted to a breath test and the result was a 0.08% BAC or higher, your defense must examine your case for any possible failures of OAT or the police to obtain a legitimate result.

Calibration and Certification

First, in order for a breath test result to be scientifically reliable and valid, it must be obtained by a breathalyzer that has been calibrated and certified by OAT. G.L. c. 90, § 24(k). When a breathalyzer is calibrated, a chemist analyzes the performance of the instrument with known, certified, and traceable reference standards. In other words, a chemist checks whether the breathalyzer is able to properly measure a sample with a known alcohol concentration. The breathalyzer is certified if the calibration and any necessary adjustments show that the instrument makes proper measurements.

In Massachusetts, a breathalyzer must be calibrated and certified at least once every year, and the calibration itself must be performed according to a standardized written protocol. 501 CMR. 2.06. The calibration process is provided by OAT in a certification report. It is vital for any defense to review this report to ensure that the calibration process was performed properly and is in compliance with the protocol. If the breathalyzer was not calibrated properly, you may have a strong basis to exclude evidence of the breath test result.

Administering a Breath Test

Under G.L. c. 90, § 24(k), in order for a prosecutor to use the result as evidence in court, the breathalyzer must be a device that utilizes infrared breath-testing. Additionally, a breath test result can only be valid if the test is administered by a certified breath test operator (BTO). This BTO must undergo a uniform statewide training and certification program and hold an up to date certification. 501 CMR 2.02.

The BTO must follow a specific process when administering the breath test. Commonwealth v. Pierre, 72 Mass.App.Ct. 230 (2008). The BTO must observe the subject for no less than 15 minutes immediately prior to the administration of the breath test. 501 CMR 2.13. This observation period is designed to allow the dissipation of any alcohol that remains in the subject’s mouth. It also prevents the mouth and oral pathway from potentially becoming contaminated by alcohol still in the subject’s stomach. If the BTO has reason to believe the subject has introduced any item into their mouth, or if they have burped, belched, vomited, or regurgitated, the 15 minute observation period must be restarted. Also, if during the test sequence, the breathalyzer reports the presence of mouth alcohol, the test sequence must end and the 15 minute observation period must be restarted with the administration of a new test sequence. If this observation period is not properly carried out, any breath test result may be artificially elevated and therefore potentially excluded from evidence.

When the breath test is administered, the breathalyzer must take an adequate breath test sample analysis, then perform a calibration standard analysis, and then take a second adequate breath sample analysis in order to provide a result. Any deviation from these requirements may result in an inadmissible breath test result.

Roadside Breath Testing

Police officers may ask you to consent to a breath test at the scene of the traffic stop. This is done using a portable breath test (PBT) machine. Police use this preliminary test to make a determination as to whether or not to arrest you for OUI. You are under no legal obligation to submit to this test and your refusal to submit to it cannot be used against you at trial. Moreover, the PBT does not meet the requirements for chemical testing set forth in G.L. c.90, § 24K, and thus is not admissible against you in court. Nor is any license suspension imposed for refusing to take the PBT. The only breath test result that may be used as evidence against you at trial is the one conducted at the police station.

The Draeger Alcotest 9510 Breathalyzer

Legal Challenges in Massachusetts

Massachusetts uses the Draeger Alcotest 9510 machine to conduct evidentiary breath testing. The use of the Draeger Alcotest 9510 breathalyzer has undergone years of litigation and scrutiny in Massachusetts trial courts. Attorney Bernard was the lead defense counsel in Commonwealth v. Ananias, et al, 1248CR1075, the consolidated statewide litigation challenging the scientific reliability of breath test results obtained by these breathalyzers. In this landmark case, the Massachusetts District Court ruled that breath test results could not be used as evidence in court until the OAT had gone through a multitude of steps to ensure strict adherence to the proper maintenance of the breathalyzers and adherence to the rules of evidence. As a result of Attorney Bernard’s work, the Court has held that breath test results obtained from breathalyzers last calibrated and certified between June of 2011 through April 17, 2019 should have been presumptively excluded from evidence.

In its initial ruling in February of 2017, the Court held that OAT failed to calibrate the breathalyzers according to a standardized protocol, putting into question the reliability of breath test results for possibly thousands of defendants. In a subsequent ruling in January of 2018, after it was uncovered that OAT had intentionally withheld court ordered and exculpatory evidence, the Court not only expanded its original order to exclude breath test results, it ordered additional serious sanctions against the Commonwealth in order to rebuild the public’s trust in our justice system. In July of 2019, the Court found that OAT was in compliance with its orders, permitting breath test results obtained from breathalyzers calibrated and certified on or after April 18, 2019 to be presumptively admissible as evidence at trial.

If you were previously convicted or accepted a plea to an OUI charge, and you were prosecuted with a breath test result obtained from a breathalyzer that was last certified between June of 2011 through April 17, 2019, you may have a basis to challenge your case.

How the Draeger Alcotest 9510 Works

The Draeger Alcotest 9510 breathalyzer uses “dual sensor” technology to determine the quantity of alcohol in a breath sample. One sensor uses infrared (IR) spectography to analyze the sample, while the other sensor employs electric chemical (EC) fuel cell oxidation. IR spectography measures the degree to which a substance absorbs infrared light at various wavelength frequencies. Both technologies have been used in evidential breath testing since the 1970s.

This breathalyzer begins its infrared detection of alcohol when a subject blows air into a tube; the expelled breath passes through a heated cuvette into an infrared chamber, where an infrared detector examines the absorption of infrared light. The EC fuel cell sits on top of the IR chamber, and part of the breath sample is funneled into it as the subject blows into the tube. The fuel cell passes electricity through the sample, causing a chemical reaction that releases energy in the form of an electrical current. The fuel cell then measures the level of electrical current, or signal, produced by this chemical reaction, which is proportional to the sample’s alcohol content.

Although the IR and EC measure a sample simultaneously, they are not interdependent. Rather, the device compares the infrared reading against the fuel cell reading. In Massachusetts, only the IR reading is reported to the operator; the EC reading is intended to verify the IR result and to detect any interfering substances in the breath sample. The results must agree within specified limits, and a result falling outside the threshold of agreement causes an error or “status” reading, which should terminate the test.

The Draeger Alcotest records and stores all results, both IR and EC, internally, and in Massachusetts the data is transmitted to a central server from which the information can be extracted. This information is critical to examine in order to defend against the reported breath test result, and can be obtained through the discovery process.

Curve Data

Curve date is information that the Draeger Alcotest 9510 produces when it measures a subject’s breath alcohol level in real time. When a subject blows into the breathalyzer, the instrument takes many measurements to form a breath profile. This breath profile is often in the shape of a curve, which will generally show a low breath alcohol level during the beginning of the breath test sample with a rapid rise and ultimate plateau of breath alcohol level, which is believed to indicate that the instrument is measuring “deep lung air.” When the breath alcohol level plateaus, it is believed that the instrument is providing a stable sample, and the peak reading is reported.

A single breath blown into the Draeger Alcotest 9510 results in 128 IR and EC calculations per second. Commonwealth v. Ananias, et al, 1248CR1075 (February 16, 2017). The Draeger Alcotest 9510 is also able to provide a histogram, or a graphical representation of a breath sample. This histogram indicates the subject’s breath flow curve (profile of exhaled breath), the subject’s flow rate in litres/second, the subject’s breath alcohol curve, and the subject’s exhalation duration in seconds.

If you are being prosecuted with a breath test result, it is essential to analyze this information, particularly your breath alcohol curve. If your breath alcohol curve shows a peak breath alcohol level that is different from the reported breath test result, or if it shows a peak below a 0.08% BAC, there may be a basis to challenge the validity of your breath test result.

Measurement of Uncertainty

No measurement is perfect, and all scientific measuring devices have generally accepted levels of uncertainty or error. No scientific measuring device could ever return exactly the same result twice. Experts on both sides agreed that all scientific test results are subject to a standard deviation or margin of error, known as measurement of uncertainty.

Breathalyzer devices generally are to be expected to be within the greater of 0.005 or 5% of the “true” value. Known solutions used to calibrate a breathalyzer that are obtained from laboratories are certified to be within 0.002 of the “true” value. OAT calculates a measurement uncertainty regarding its calibrations of 7% by drawing on historical OAT data regarding system error (5%) and adding it to the dry gas manufacturer’s margin of error as reported on its certificates of analysis (2%). An accurate and precise breath test result will therefore vary a small amount from the “true” value. Commonwealth v. Ananias, et al, 1248CR1075 (February 16, 2017).

If you are being prosecuted with a breath test result under the per se portion of G.L. c. 90, § 24, this 7% measurement uncertainty may be . For example, the measurement uncertainty on a 0.080% BAC reading means that the true value could be anywhere from 0.076% to 0.086%. In other words, your true BAC could be below a 0.08%. Because the Draeger Alcotest 9510 result as reported is truncated, the BAC would be reported as a 0.08%. Even if the true BAC of the sample value factoring in the OAT margin of error is 0.076%, without a knowledgeable and experienced defense attorney, you could be held criminally liable based upon the reported result of 0.08%. Hence, if your breath test result is close to the legal limit, it is critical to your defense that your lawyer elicit the margin of error.

Lawyers at the Forefront of Breath Testing

When it comes to a DUI charge, a clear understanding of breath testing, its flaws, and potential challenges is vital to your defense. The Massachusetts DUI lawyers at The Law Offices of Joseph D. Bernard P.C. have been at the forefront of defending individuals with a breath test result and understand the need for scientific analysis when preparing a defense for the firm’s clients.