I was arrested for OUI/DUI and took a breathalyzer. Can the breathalyzer be used against me?

As of now, the District Attorneys’ offices throughout the state are not using breathalyzers in trials except in the most serious of  drunk driving cases (a drunk driving charge with either a death, serious bodily injury, or at least four prior drunk driving offenses).  This is because of discovery violations that came to light a few years ago when the reliability of the breathalyzer device was challenged.  Each police department and State Police barracks has its own breathalyzer device. The certification/calibration of that device is handled by a state agency known as the Office of Alcohol Testing (“OAT”).  The issues from the litigation are ongoing. On January 9, 2019, the Court (Brennan, J.) handling the litigation issued a new ruling which will prolong the exclusion of breathalyzer readings indefinitely. The order will prohibit the use of breathalyzers until the following conditions are met:

  1. that OAT has filed an application for accreditation with ANAB that is demonstrably substantially likely to succeed;
  2. that OAT’s accreditation application has been uploaded onto the eDiscovery portal;
  3. that the ANAB Accreditation Requirements manual is available for viewing on the eDiscovery portal;
  4. that OAT has promulgated discovery protocols consistent with those employed by the State Police Case Management Unit, including a definition of exculpatory evidence and an explanation of the obligations pursuant to such evidence; or, in the alternative, that the CMU is responsible for processing OAT’s discovery;
  5. that OAT’s discovery protocol has been uploaded to the eDiscovery portal;
  6. that all OAT employees have received training on the meaning of exculpatory information and the obligations relating to it; and
  7. that all written materials used to train OAT employees on discovery, and particularly on exculpatory evidence, have been uploaded to the eDiscovery portal.

If all of these requirements have been met, the Court may still, upon motion of the consolidated defendants, reinstate the period of presumptive exclusion if OAT fails to update the progress of its application for accreditation on the eDiscovery portal, or otherwise fails to make good faith efforts to gain accreditation.

Commonwealth v. Ananias, et al, Memorandum of Decision on Consolidated Defendants’ Motion to Compel and Impose Sanctions, Jan. 9, 2019 (Brennan, J.).

Keep in mind that the breathalyzer offered roadside, the preliminary breath test (“PBT”), is inadmissible at a trial regardless of the ongoing litigation.  This is because the technology underlying the PBT, which is a hand-held device, is not considered scientifically reliable.  This does not stop the police from using the PBT result as a field sobriety test to determine whether there is probable cause to arrest you for OUI/DUI.  You can always refuse any field sobriety test, which cannot be held against you at a trial. If you refuse to take the PBT, there will be no adverse license consequence.  At the station/barracks, the breathalyzer at issue in the ongoing litigation is about the size of a small printer. The ongoing litigation does not affect the license consequences for taking or refusing the breathalyzer at the station/barracks.  It just means that the Commonwealth cannot use the evidence against you at a trial.

It is important to speak to a lawyer who is well versed in these matters before deciding whether to plea or go to trial on an OUI/DUI.  If you take the breathalyzer and have a reading of 0.08 or greater, then some people assume that the best course of action is to take a plea.  That is not always the case. Remember, the Assistant District Attorney is not supposed to provide legal advice and is unlikely to inform you about the admissibility of breathalyzer readings. You should consult with a lawyer so that you explore all options and make an informed decision as to whether to plea or go to trial based on your circumstances and the evidence that could be presented at a trial.

Michael Thaler, Esq.

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