District Attorneys across Massachusetts this week have suspended the use of Breath Alcohol Testing (BAT) evidence in drunk driving or Operating Under the Influence cases at trial or in plea negotiations. This action follows recent claims by defense attorneys that, in prior litigation challenging the reliability of the Alcotest 9510 BAT machine, prosecutors withheld key evidence, specifically, hundred of records purportedly indicating that the Alcotest 9510 machine was unreliable. Continue reading →
In response to the challenge to alcohol breath test results involving the Alcotest 9510, a Massachusetts judge has recently ruled that the BAT results for yielded by this machine for the period between June 2012 and September 2014 are unreliable and inadmissible at trial. Results yielded after September 14, 2014, he further ruled, are admissible.
In Massachusetts, it is estimated that approximately 2,000 to 3,000 Drunk Driving or OUI/DUI cases were likely affected and/or waiting for the outcome of this decision. The Alcotest 9510 machine, which is manufactured by Draeger Safety Diagnostics, is an alcohol breath test machine that is used by hundreds, if not thousands, of police departments across the country.
The issues in the challenge to the breathalyzer machine was whether the source code in the Alcotest 9510 produces accurate results; whether the machine’s code in producing breathalyzer ratios is accurate; whether the machine’s methodology produced unreliable results; and whether the BAT machine’s source code has security flaws that would make is susceptible to manipulation, and consequently, unreliable results.
The Massachusetts Supreme Judicial Court recently ruled that technicians who performed the certification tests on Breathalyzer Test Machines are not needed to testify at trial in Massachusetts Drunk Driving Cases. In the case of Commonwealth v. Zoanne Zeininger, the state’s highest court held that certification tests of Breathalyzer Machines are admissible in evidence as business records, and are not testimonial statements triggering the 6th Amendment Right of Confrontation.
Zoanne Zeininger was arrested in 2007 for Operating Under the Influence of Alcohol. At the station, Zeininger submitted to an Alcohol Breath Test and gave two readings, each registering 0.10%. She was convicted after trial and appealed the conviction claiming that her constitutional rights were violated as to the evidence of the Breathalyzer Test being admitted into evidence without the live testimony of the technician who performed the certification tests on the machine.
The basis for Zeininger’s argument was, in large part, based on the alleged violation of her 6th Amendment Right to Confront the witnesses against her. In support, Zeininger claimed pointed to the cases of Crawford v. Washington and Melendez-Diaz, which records of testimonial statements require live testimony of the proponent of such statement to satisfy the defendant’s Right of Confrontation. In Melendez-Diaz, for example, the United States Supreme Court held that certificate of drug analyses, prepared by chemists when testing whether a particular item is a controlled substance, are testimonial in nature and, in order to be admissible, the drug lab experts should be called to testify.
Police officials in Philadelphia recently acknowledged that miscalibrated Breathalyzer machines had compromised almost 1,200 DUI Charges for the previous year, calling into question most, if not all, of those drunk driving convictions where a Breathalyzer Test was administered.
As a result, the District Attorney’s Offices in Philadelphia will initiate a complete review of all DUI / OUI convictions from September 2009 to November 2009, which is believed to be the time period where the miscalibrated Breathalyzer Tests affected those criminal prosecutions.
The miscalibration of these Breathalyzer Tests exemplifies how susceptible these machines are and illustrates the great importance to Consult with a Boston DUI Lawyer to properly evaluate and defend your Massachusetts DUI / OUI Charges.
Earlier this month, the Massachusetts Supreme Judicial Court heard oral arguments in a case where the defendant challenged his Massachusetts Drunk Driving / DUI Crimes conviction. The issue now before the Court concerns DUI / Drunk cases where the government seeks to introduce evidence of the Breathalyzer Test and where the prosecutor fails to call as a witness the person who certified the Breathalyzer Test.
In the case now before the Court, the defendant, Zoanne Zeininger, had asserted that the Breathalyzer Test results in her case were inadmissible because there was no testimony demonstrating that the breathalyzer machine was certified. In her appeal following her conviction for Operating Under the Influence of Alcohol, she relied on an earlier Massachusetts Supreme Court decision in Commonwealth v. Barbeau, in which the Court ruled that a Breathalyzer Test machine must be proven to have been certified annually and have complied with periodic testing.
In the Zeininger case, that defendant challenges her DUI / Drunk Driving conviction because her Sixth Amendment Right to Confrontation was violated because the prosecution did not call as a witness the person who certified the machine; and consequently, she was deprived the opportunity to cross-examine that witness and the certification process.