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Higher of Two BAC Test Readings Not Admissible, Massachusetts High Court Rules

Last fall, the Massachusetts Supreme Judicial Court made a ruling with important implications for Massachusetts drunk driving criminal defense attorneys and their clients. johnadamscourthouse248In the case of Commonwealth v. Dennis P. Steele, the court was asked to decide whether prosecutors may introduce both blood-alcohol content test readings at OUI trials, or only the lower of the two readings. This was a challenge to the existing rules, which explicitly say that prosecutors and police may use only the lower of the two readings. Fortunately for Massachusetts drivers, the court rejected the challenge and affirmed the rule as it currently exists.

State regulations say law enforcement must take two BAC tests when looking for evidence of drunk driving. The idea is to make sure the breath readings are accurate. If they’re off by more than 0.02, they may not be admissible in court. Under rules written by the state Secretary of Public Safety, police and prosecutors may use only the lower of the two readings. Prosecutors challenged that rule in the case of driver Dennis Steele, a western Massachusetts man who was arrested in February of 2009 for operating under the influence and driving with a suspended license. As MassLive.com reported Oct. 17, Steele’s two BAC readings measured 0.09 and 0.10, slightly above the legal limit of 0.08.

Steele decided to defend the OUI charge. At trial, prosecutors argued that they should be able to introduce the higher reading as evidence because the rule against this is not exactly state law — the Secretary of Public Safety rather than the Legislature made the rule. They agreed that the lower reading was the official BAC, but said the higher one was still valuable evidence that should be admitted by courts. The trial court disagreed, but the prosecution appealed the issue to county court and got it reversed. Steele’s appeal to the Massachusetts Supreme Judicial Court followed.

In its ruling, the SJC sided with Steele. Massachusetts law says regulations are valid as long as they relate to, and don’t conflict with, the controlling statute. In this case, the court said, the Legislature explicitly gave the Secretary of Public Safety the authority to make this decision, and didn’t make its own rule on how to handle different BAC rulings. Thus, the Secretary’s decision was perfectly valid. Furthermore, the court wrote, the two-part BAC test was intended to validate the test itself, not provide further evidence. Indeed, introducing two different breath test samples could unnecessarily confuse the jury, it wrote. It also invites jurors who don’t understand BAC tests well to incorrectly believe that the lower sample was inaccurate.

This decision upholds the status quo, but it’s still an important victory for Massachusetts OUI defense lawyers like me. As the SJC pointed out, jurors don’t always have a good understanding of BAC tests. These tests can be finicky and often result in slightly different readings, which can be caused by anything from the timing of the driver’s last drink to his or her health. Furthermore, the public is generally biased against drunk drivers, which means jurors may assume a higher test result is the correct one. By allowing only one test result to be admitted, the court has ensured that OUI defendants get a fair change in court. And by throwing out results that differ by more than 0.02, the state ensures that defendants can’t cherry-pick from wildly different results.


The Law Offices of Stephen Neyman represents clients from greater Boston and all of eastern Massachusetts. We defend people facing charges of operating under the influence and all related charges, including RMV license suspension hearings as well as serious drunk driving crimes. To learn more or for a free phone consultation, you can contact our firm online or call (617) 263-6800 today.