MassCops - Massachusetts Law Enforcement Network, A Mass Police Web Portal

Massachusetts Law Enforcement Network

Massachusetts Police News, Information and Discussions on MassCops

Pages: 1

Main Page Is Breathalyzer reliable? Facing tough new law, lawyers aim to discredit test
(Click here to view the original thread on the MassCops Message Board)

Posted by: DANIPD

Published: 11/16/2006
Is Breathalyzer reliable? Facing tough new law, lawyers aim to discredit test
By Julie Manganis
Staff writer

Robert Flynn was traveling "considerably under" the speed limit, smelled of alcohol and even told police officers he'd been drinking since 10 a.m. when they pulled him over in Beverly on the afternoon of Oct. 7, 2005.
He refused to perform field sobriety tests, but back at the police station, he took a Breathalyzer and registered a .08 blood alcohol level - a level that, under Melanie's Law, is considered evidence of impaired driving.
A slam-dunk case of drunken driving?
As it turns out, no.
When his case went to trial two weeks ago, Flynn, 67, of Salem, was cleared of a drunken-driving charge by a Salem District Court jury - a jury that did not know about his .08 blood alcohol level.
That's because his lawyer invoked a once rarely used argument to convince a judge that the Breathalyzer result was not reliable. So the judge tossed out the test result.
Flynn's lawyer has not been the only one to make this argument in the year since Melanie's Law took effect.
In the past, defense lawyers were able to convince some juries that a defendant was not impaired, even if his blood alcohol level was over the legal limit. Now, with a blood alcohol level of .08 considered definitive evidence of impaired driving, lawyers are scrambling to find ways to discredit results of breath analysis tests - and keep them from juries.
In the case of Flynn, defense lawyer Ed Sargent asked the judge to require prosecutors to call an expert witness to testify about how alcohol is processed by the human body.
His argument: There is no way to know exactly what Flynn's blood alcohol level was when police stopped him at 3:20 p.m., because the Breathalyzer exam wasn't given until 45 minutes later.
By that time, his blood alcohol might have risen, as his body continued to absorb the alcohol, said Stavroula Powell, an expert witness for the prosecution from the state crime lab.
But it also could have fallen.
There's no absolutely foolproof way to determine - or as the lawyers say, "reverse extrapolate" - what the alcohol level was without knowing exactly how much a person drank, what he had eaten, his height and his weight, Powell testified. Even then, it's not a perfect science, she acknowledged, because not everyone metabolizes alcohol the same way.
Immediate testing?
In Massachusetts, the law says a person is guilty of drunken driving if their blood alcohol is at least .08 at the time of the offense - and not at the time the test was administered, said Andrea Nardone, of the Massachusetts District Attorneys Association.
Problem is, there's no reliable way to test someone immediately. It takes time to stop someone, conduct field sobriety tests, take them to the police station and book them, warm up the machine (which requires at least 15 minutes), and also observe a suspect for a period of time, which is also required. That usually takes an hour or two.
Flynn's case was unusual in that he'd apparently described what he had to drink earlier in the day: a beer at 10 a.m., a vodka drink at 12:30 and a mai tai at 2:30 p.m. Most defendants either don't admit to drinking or tend to minimize the amount.
During a hearing, however, Powell acknowledged she did not know how much vodka or rum was in the drinks or whether he'd eaten. So at the time he was stopped, Flynn's blood alcohol might have been .07 - or it might have been as high as .10.
Because of the uncertainty, Judge Dunbar Livingston decided jurors could not hear about the Breathalyzer test.
Under standard rules of evidence, the jury also would not be told about Flynn's refusal to take field sobriety tests (which he had a right to refuse), nor about the woman who had called police to report that Flynn was swerving all over the road (because she was not called to testify as a witness).
All of which made it difficult to get a conviction.
Defense lawyer Ed O'Reilly, who represents many clients accused of drunken driving, has also argued that Breathalyzer testing is not reliable enough to be used as "per se" evidence of guilt, as Melanie's Law requires.
Last month, he convinced Judge Robert Cornetta to order prosecutors who wanted to rely on Breathalyzer evidence to produce an expert witness to testify about how the body absorbs alcohol, and also to have the officer who administered the test take the stand.
'Not what the law says'
Prosecutors, however, argue that Melanie's Law does not require the use of an expert to have that evidence used at trial.
Sometime this winter, the issue will be argued before the state's highest court, in the case of Anne Colturi, a woman from central Massachusetts who was charged with drunken driving and registered a .08.
Nardone, of the district attorneys association, who specializes in vehicular crimes, said that since Massachusetts was one of the last states to adopt the .08 "per se" standard, it hasn't yet been tested in higher courts.
"Other states have litigated this," Nardone said. And for the most part their courts have ruled that a Breathalyzer test done after an arrest is reliable evidence. Some states have required that a second breath test be done to determine whether a person's alcohol level was rising or falling.
If expert witnesses are required, prosecutors argue, it will create a formidable financial and logistical burden for the prosecution, which must track down one of just a handful of available experts to testify. Powell, for example, is one of just three blood-alcohol experts who work for the state.
O'Reilly, the defense lawyer, concedes the difficulty prosecutors will face, but says that can't be helped.
He said he's seen Breathalyzer results rise and fall within just a few minutes.
"How do you know what it was an hour before?" he asked.

Posted by: Wolfman

What an ass. Maybe when some drunk puts him in a wheelchair and he has to have a monkey feed him the rest of his life he may try a more conventional defense startegy.

Posted by: sherifflittle

hey i had a friend who was confined to a wheelchair (r.i.p.) and he was pulled over on rt 27 in walpole because he was out drinking w/ us and got pissed off at us and sped off in a fit of fury!....mmmwwwwaaa!!!!!!!!!!!.....the officer was cracking up once he found us ...mmmwwwaaa!....man i miss that fucker!...

Posted by: PBC FL Cop

Yes, they are reliable.

Posted by: MM1799

Quote:

Originally Posted by Wolfman

What an ass. Maybe when some drunk puts him in a wheelchair and he has to have a monkey feed him the rest of his life he may try a more conventional defense startegy.

Sadly that seems to only happens to the innocent, not the OUI or the loser attorney who got his client off on a technicality.

ma police, boston ma police, massachusetts police, massachusetts police, mass state police, mass police, ma, mass, massachusetts, massachusetts, massachutes, massachusetts law, massachusetts polece, police, officer, police officer, cops, police gear, law enforcement, police duty gear, state police, sheriff, law, police supply, police agency directory, police agency, police department, traffic officer, police dept, state trooper, dispatcher, massachusetts county sheriff, massachusetts sheriff, massachusetts department of corrections, ma doc, doc, dept of corrections, police information, civil service, ma civil service, massachusetts crime, police training, police academy, ma police academy, massachusetts officers, masscop, masscops, mpa, bpa, ibpoa, police association, massachusetts police news, massachusetts crime news, mass most wanted, police career information, police patrol, police administration, police books, crime scene training, police discussion, crime discussions, cops

About MassCops, the home for Massachusetts law enforcement.

The Massachusetts Law Enforcement Network opened in 1998 and is now a part of the New England Police Network The site is a pro-police discussion forum intended for sworn police officers and civilian law enforcement officials as well as those interested in pursuing a career in law enforcement here in Massachusetts.

The goal of The Massachusetts Law Enforcement Network is to provide an informal network of law enforcement officials here in Massachusetts for educational and informational purposes.

The forum covers many topics such as Police Related News Articles, Agency & Profession Discussions, Police Training as well as Law Enforcement Career Information.

The Massachusetts Law Enforcement Network and The New England Police Network (NEPN) and it's network sites are privately owned websites/domains and are not affiliated with or endorsed by any government association or agency.

MassCops (masscops.com) and (masscop.com) are privately owned are not affiliated with or endorsed by the Massachusetts Coalition of Police (masscop.org)

3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 49 50 53 54 55 56 57 58 59 60 61 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 98 99 100 101 102 103 104 105 106 107 108