The defendant was charged with OUI. He took and failed a breathalyzer test. He then filed and argued a motion to suppress the results of the breathalyzer test claiming that the test was improperly administered. The trial judge allowed the motion to suppress and the prosecution appealed the ruling. The Massachusetts Appeals Court heard the appeal and affirmed the trial judge’s decision.
Code of Massachusetts Regulations (CMR) Sec. 2.55 advises that the test operator observe the defendant for a period of fifteen minutes prior to administering the test. The regulation is designed to ensure that the suspect is not doing anything that might adversely effect the accuracy of the test. For example, people experiencing reflux might burp or hiccough thereby bringing up from the stomache food or drink. This action could provide a false positive result. The regulation was designed to prevent this from occurring. Massachusetts courts have ruled that it is not necessary that the observation actually occur in the breathalyzer room. Rather, the observation can occur during the stop of the defendant, the administration of any field sobriety tests and during transport to the police station.
In this case the officer who administered the test believed that the fifteen minute waiting period was for the purpose of letting the breathalyzer machine warm up. He never offered his observations, particularly whether he observed a contaminating event. Rather, he talked about the events that transpired and provided time estimates as to each event.
The Massachusetts Appeals Court ruled that the test results must be suppressed due to the improprieties. See Commonwealth v. Pierre, slip opinion July 17, 2008.
In Massachusetts you have an absolute right to refuse to take a breathalyzer test. You also have the right to refuse to take field sobriety tests. It is important to know that if you choose to refuse those tests the prosecution is not permitted to mention that fact to a jury or a judge at trial. To more fully understand your rights you should contact a Massachusetts Criminal Defense Lawyer. Our office has been handling OUI cases for over 20 years. If you have been charged with OUI call the Law Offices of Stephen Neyman. We will fight to protect your rights.
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