Articles Posted in Breathalyzer Test

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539wAs a Massachusetts intoxicated driving defense attorney, I was concerned about a recent Boston Globe article’s discussion of blood alcohol measurement devices to be built in as standard features in new cars. I have written about this in the past, but this article provides new and alarming details.

The device would replace existing ignition interlock devices that are installed in the vehicles of people convicted of certain drunk driving charges. The existing devices require drivers to blow into a tube to have their blood-alcohol content (BAC) analyzed. If their BAC is too high, the car won’t start. The new device wouldn’t require the driver to do anything — it would automatically analyze ethanol in the moisture of the driver’s breath. Like the existing devices, the new one would prevent the car from starting if it detected a BAC above the legal limit.

QinetiQ North America, a Waltham defense contractor, is developing the device with $10 million in funding from the National Highway Traffic Safety Administration, the Automotive Coalition for Traffic Safety (an auto manufacturers group), and the Alliance of Automobile Manufacturers. Congress is considering kicking in another $10 million to help defray the cost of installing the device in new cars.

Obviously, drunk driving is dangerous, and encouraging drivers to take responsibility for their actions and avoid driving when they’re impaired is entirely desirable. But while it may be well-intentioned, this project raises several different kinds of red flags for me as a Massachusetts OUI defense attorney. First, as I wrote last month, breathalyzers can register false positives because they detect ethanol that comes from sources other than alcohol. Is it fair to have a device like this prevent a driver with a completely clean driving record from starting his or her car after painting the house or eating bread — both of which can set off false positives on a breathalyzer? How would the device know whether ethanol came from the breath of a sober driver or a drunk passenger — would this device have the unintended consequence of discouraging designated drivers? How would drivers of disabled cars get home from wherever the car stranded them, especially in the many areas of Massachusetts and the country where public transportation is not widely available?

In addition, it often takes a while for new technologies to be completely vetted so that they work properly. Innocent drivers affected by a malfunctioning or oversensitive automatic breathalyzer could actually be harmed if, for example, the car is prevented from starting when they have an emergency and need to get to a hospital, or if they need to get to work. Would people avoid buying new cars once these devices became standard equipment, so that they could avoid these devices?

Perhaps fewer OUI charges would be made once these devices were in circulation. But no matter the circumstances, anyone charged with drunk driving should retain a Massachusetts drunk driving criminal defense lawyer to help ensure the best possible outcome for their case. Fines costing thousands of dollars, jail time, loss of license, skyrocketing insurance costs and possible loss of a job could all be consequences of a drunk driving conviction in Massachusetts.

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2822389247_4f98fbb27e_mThe next time you go out to dinner, be sure to drive carefully if you’ve eaten any bread products. You wouldn’t want to be stopped by the police with bread on your breath, since studies have shown that breathalyzer tests can’t tell the difference between the amount of alcohol in your blood and the ethyl alcohol that stays on your breath after you eat bread, yeast, or similar foods. Without drinking any alcoholic beverages at all, people who have eaten bread have gotten breathalyzer blood alcohol concentration readings as high as 0.05% — more than halfway to the legal limit at which you’re considered legally intoxicated. As a Massachusetts OUI defense lawyer, I think it’s important for people to know that the tests used to determine whether a driver is intoxicated are not foolproof. You can often — and should — fight OUI charges based on these faulty tests.

Nobody wants to see more drunk drivers on the road. But evidence shows that the breathalyzer test, on which law enforcement relies heavily, is not a good basis for determining who is driving drunk. I’ve written lately about the problems with field sobriety tests — basically, that they rely on faulty science that’s decades old. Blood-alcohol concentration tests also have problems because when they look for ethyl alcohol, which is the kind of alcohol people drink, they also can find similar substances that are not intoxicating, but still cause a false positive.

According to sociology professor David Hanson, the test doesn’t just pick up on food molecules, either — people who have been painting a wall can test as intoxicated without ever drinking any alcohol. Breathalyzer results can also show false readings because of “alcohol, blood or vomit in the subject’s mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture.” Tests of the subject’s actual blood, not their breath, produced accurate results in these investigations — but the breathalyzer could be amazingly inaccurate.

Field sobriety tests and breathalyzers make up two out of three of the usual sources of evidence in drunk driving cases — police officers’ personal observations being the third. Scientific evidence and common sense makes it clear that none of these are foolproof or even necessarily accurate — meaning that there’s a real problem with the way police determine which drivers are drunk. This makes it easier for me, as a Massachusetts intoxicated driving defense attorney, to get evidence against my clients thrown out and to achieve dismissals or not-guilty verdicts. But it’s unfair to my clients to be arrested and charged in the first place if it’s done on the basis of faulty evidence and unscientific tests. Some states, like South Dakota, recognize that breathalyzer tests are inaccurate and don’t allow them to be used as evidence; they allow only blood tests because they can rely on them to be accurate. But in Massachusetts and many other states, breath tests are used as evidence at trial, and there are even penalties for drivers who refuse to submit to them. Refusing the breathalyzer, even if you’re not intoxicated, results in suspension of your driver’s license for 180 days if you’re over 21. You can appeal that suspension, but it is an extra burden that may be inappropriate, given that the test is far from reliable.

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Guardian_Interlock_AMS2000_1Last month, I wrote about the use of ignition interlock devices in Massachusetts drunk driving cases. Under Melanie’s Law, courts may order repeat OUI offenders to install these mobile breathalyzers in their vehicles, at their own expense. The devices were originally hailed as an effective way to stop drunk driving, but as I wrote in January, citizens and Massachusetts OUI defense attorneys have raised significant questions about their effectiveness, reliability and safety.

Now, a report from the Record of Waterloo, Ontario, Canada suggests that ignition interlock devices may someday be outmoded by a new technology. The Feb. 12 article says Sober Steering Sensors Canada Inc. is developing a type of chemical sensor that can detect what it calls the gas byproducts of alcohol though a person’s skin. The company is developing a steering wheel that incorporates the sensors. As with IIDs, the system would not allow the vehicle to start if it detects a high BAC. The Record said the company is already testing the technology in “fleet” vehicles, including buses and large trucks. Both MADD and the auto insurance industry have expressed interest, and the company’s founder was slated to talk to Florida’s state legislature about the technology Feb. 15.

The article said Sober Steering’s product may improve on IIDs for several reasons. IIDs require a “clean” breath test before they allow the vehicle to start. Drivers can get around this by having another person take the test. For this reason, IIDs also require a “rolling retest,” which means retaking the breath test while the vehicle is in motion. Critics believe this is not safe, especially since the car can shut down in traffic if the driver can’t find a safe place to pull over and take the test. The Sober Steering technology can take rolling retests without the driver having to do anything but keep his or her hands on the wheel. Sober Steering claims its technology can tell the difference between alcohol consumption and alcohol from hand sanitizer, mouthwash or other products, a common criticism of breathalyzers. And the cost of installing it is a sixth to a tenth of the cost of an IID, the article said.

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State Senator Anthony Galluccio is headed to jail, the Boston Herald reported Jan. 4. Galluccio, a Democrat elected to represent Cambridge will serve a year in jail in connection with an Oct. 4 hit-and-run accident he admits to causing. That crash caused only minor injuries to a father and teenaged son, but Galluccio left the scene. He did not turn himself in until the next day, making it impossible to test him for alcohol, but he has two past OUIs (one pardoned) and a past accident. When Galluccio was sentenced for the hit-and-run, Judge Matthew Nestor gave him six months of home confinement with exceptions for Senate votes and church, on the condition that he not drink and submit to random alcohol testing. His driver’s license was also revoked for five years.

That sentence was handed down Dec. 18. On Dec. 21, a probation department employee came to install an alcohol-testing device called a Sobrietor in Galluccio’s home. Right after installation, the device detected alcohol on Galluccio’s breath. The senator said he hadn’t had any alcohol and suggested that sorbitol, an artificial sweeter in toothpaste, may have been the culprit. Despite testimony from an expert witness, Nestor said he believed Galluccio had been drinking. He revoked Galluccio’s probation and sent him to jail for a year. Senate President Therese Murray issued a statement suggesting that Galluccio will lose his job if he does not resign.

Read article: Embattled Galluccio gets 1 year in jail

Galluccio’s suggestion that toothpaste may have set off the Sobrietor is attracting ridicule in some circles. The Boston Herald even went so far as to test the theory, using a home breathalyzer kit. But Massachusetts OUI criminal defense lawyers already know that toothpaste, mouthwash and other alcohol-containing substances can give a false positive on a breathalyzer test, even though the person may in fact be sober. As the Herald’s test shows, taking a reading directly after brushing your teeth, sipping a beer, belching or more can produce high readings, which fall off dramatically in a few minutes. This is because of residual alcohol in the mouth. Breathalyzers are supposed to work by testing the alcohol in the air expelled from the person’s lungs, then using an equation to calculate BAC. Using the same equation for the much higher amount of mouth alcohol can produce a very high but temporary reading.

This is why law enforcement officers are supposed to observe the driver for 15 minutes before administering a breathalyzer — to ensure that enough time has passed since the last drink to avoid a false positive. Failure to do this, or to follow several other procedures, can make the evidence tainted or suspect. When this is the case, an experienced Massachusetts drunk driving defense attorney will ask the judge to leave that evidence out of the case entirely. In effect, this substantially weakens the prosecution’s case, because without a BAC reading, it is much more difficult to prove that the defendant operated a motor vehicle while intoxicated.

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A man from Taunton was arrested in that town for driving drunk and flying into a rage after his arrest, the Taunton Gazette reported Oct. 7. The article does not specify the circumstances behind the DUI charge against Raymond Butler, 45. But after his arrest and placement in the back of a police car, the article says, the arresting officer said Butler began screaming, banging his head against the window. The officer also said Butler used profanity and crude sexual references, and threatened to claim that the officer assaulted him.

He later complained that his pacemaker was bothering him, so police called an ambulance. When EMTs arrived, Butler allegedly screamed at them and flailed so much that he struck one of them. When he arrived at the hospital, he allegedly screamed vulgarities at hospital staff, threatened a nurse and pulled an IV out of his arm. He was charged with operating a motor vehicle under the influence of alcohol; having an open container in his vehicle; threatening to commit a crime; disturbing the peace; assault and battery on ambulance personnel; and disorderly conduct.

Read article: Taunton man flies into rage after OUI arrest

The evidence of Butler’s disruptive behavior could make this case difficult for a Massachusetts DUI defense attorney, but not necessarily because he was guilty of driving while intoxicated. It is not clear from the article whether the police have solid evidence against Butler, and what that evidence might be. (If the description in the article is accurate, Butler may have refused the breathalyzer test, making it more difficult to prove intoxication.) But even a strong defense may not impress a jury when evidence suggests the defendant was hostile. Even though the charges stemming from that behavior are separate from the DUI charge, juries may incorrectly believe they support the idea that the defendant was driving drunk. Depending on the other evidence in the case, an experienced Massachusetts OUI defense lawyer may consider suggesting a guilty plea in exchange for a 24D sentence (alternative disposition) that lowers the penalties considerably.

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A driver pulled over in Natick, Massachusetts was driving while intoxicated and going more than twice the speed limit, MetroWest Daily News reported Oct. 6. Jason Michael Harvey, 29, was stopped for excessive speed around 2 a.m. on Route 9. The speed limit in the area is 45 mph; an officer using speed radar clocked Harvey at 91 mph. Harvey, of Framingham, admitted that he had been drinking alcohol, and an officer found an open bottle of vodka in his large, 12- to 15-passenger van. A Breathalyzer test at the scene found Harvey had a blood-alcohol concentration of 0.21, more than twice the 0.08 legal limit in Massachusetts. Harvey was charged with OUI, driving to endanger, driving with an open container of alcohol, driving on a suspended license, speeding and failure to wear a seat belt. He pleaded not guilty at an Oct. 5 arraignment.

Read article: Framingham man charged with driving twice the speed limit in Natick

As a Massachusetts DUI defense attorney, I frequently hear from clients in situations like Harvey’s who feel that their cases are hopeless. If the police have a BAC reading, the logic goes, there must be no way they can fight the charge. While it’s true that failing a breathalyzer test can be strong evidence in a drunk driving case, failing a breathalyzer is not proof that the accused was truly operating under the influence of liquor. As I explain on my Web site’s breathalyzer page, test results may be inadmissible at trial if the police did not follow certain procedures designed to keep the evidence from being tainted. In fact, the law says police must watch the accused for fifteen minutes before administering a breathalyzer, because certain digestive problems and eating or drinking certain things can throw off the test results.

Among the foods and drinks that can throw off test results is alcohol itself. Breathalyzers estimate BAC by calculating the amount of alcohol on a person’s breath. When the person being tested has drunk some alcohol moments before, he or she likely still has alcohol in the mouth — which can give off fumes. Those fumes can disrupt the breathalyzer reading, giving it a falsely high test result. The report notes that Harvey had an open bottle of vodka in his van, suggesting that he may have been drinking right before he was pulled over. If that’s the case, and the officer did not wait 15 minutes to administer the test, the breathalyzer results may be inadmissible in court — weakening the DUI case considerably. This doesn’t affect the other charges in Harvey’s case, of course, but an experienced Massachusetts drunk driving defense lawyer can substantially reduce the penalties he faces with defenses like these.

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Last week Nancy Toledo of Braintree, Massachusetts was stopped for having a defective taillight. Once stopped the police officer observed signs consistent with alcohol and drug use. Toledo was asked to perform some Field Sobriety Tests. According to reports Toledo took the tests and failed. She was transported to the police station where she was given the Breathalyzer Test. She failed this too. She was charged with OUI Drugs and Alcohol. Toledo was also charged with Resisting Arrest. After the defendant’s car was searched more charges were added; Possession of Drugs and Drinking from an Open Container. The case will be prosecuted in the Quincy District Court.

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Massachusetts Woman Fails Breathalyzer Test, Field Sobriety Tests And Gets Charged With DUI Drugs, Alcohol

Assuming the taillight was in fact defective and stop was constitutionally permissible Toledo’s best option might be to admit to sufficient facts and enter the “24D” program. There she will be placed on probation for one year. She will have to enter and complete an alcohol awareness program, pay some fines and lose her license for forty five days. She will be eligible for a hardship license assuming she meets the criteria set out by the Registry of Motor Vehicles. She may also have to undergo some drug counseling if the judge believes she might have a substance abuse problem. Successfully trying this case will be a challenge due to the presence of drugs, the failed field sobriety tests and the failed breathalyzer test.

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Last Friday Peter Koshivas of Holliston, Massachusetts crashed his Honda Civic into a tree just after 1:00 in the morning. His passenger, Benjamin Snow was injured in the crash and taken to the hospital by helicopter. Police stated that both Koshivas and Snow are luck to be alive. Koshivas will be charged with OUI Serious Bodily Injury, Reckless Driving and related Motor Vehicle Charges. The case will be prosecuted in the Framingham District Court. The article was not specific on the details of the crash.

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Holliston, Massachusetts Man Who Injured Friend In Crash To Be Prosecuted For DUI, Other Motor Vehicle Crimes

The article reported that Koshivas was also injured in the crash. Thus, it is reasonable to assume that he never took the field sobriety tests nor did he take a breathalyzer test. I would imagine that blood was taken from him at the hospital and that it has been tested for the presence of alcohol. As I have mentioned in prior posts the blood must be taken and tested in certain ways to avoid the possibility of a false positive result. Absent any eyewitness testimony the prosecution will probably base its case on Koshivas’ blood test results and an accident reconstruction. The accident reconstruction simply buttresses the district attorney’s case provided they have an alcohol sample that reads a .08 or higher. If not, the OUI aspect of this case is harder to prove.

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The Gloucester Daily Times reported that two days ago Mark Hargrave, 55 of Hamilton, Massachusetts was arrested and charged with Second Offense OUI after being pulled over on Route 128 Southbound. Hargrave was also charged with failing to stay within marked lanes and Failure to Stop for a Police Officer. The case is now pending in the Salem District Court.

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Second Offense Operating Under The Influence Charged Against Hamilton, Massachusetts Man

While there is a tremendous amount of detail missing from this article there may be a silver lining for Hargrave’s case. If he refused to take the Field Sobriety Tests and if he refused to take the Breathalyzer Test then the only case against him is likely the police officer’s observations. Experienced Criminal Defense Lawyers are able to quickly educate jurors about the commonality of police officers’ testimonies in cases like this one. The officer will offer the following at trial: 1) that he observed the defendant operating his vehicle in an erratic manner; 2) that when he made the stop of the driver he smelled the odor of alcohol on his breath; 3) the he did not properly respond to the officer’s commands; 4) that he appeared unsteady on his feet; 5) that his speech was slurred and 6) that his eyes were red and bloodshot. The defense attorney will show the jury how these subjective observations are common to all officer stops. Almost every OUI police report that I have seen reports this same pattern of detail for the “run of the mill” drunk driving case. This testimony is impeachable and jurors immediately see the doubt in the prosecutor’s case. If Hargrave was not impaired he will produce witnesses with whom he was with prior to the arrest and whom he contacted after the arrest to vouch for his sobriety. Cases like this one are usually very triable.

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Last weekend just before 1:00 a.m. Jacqueline Boutin was driving her husband Michael and Peter Colangelo off of Route 140 when she noticed a car rapidly approaching her from behind. The trailing car that was being operated by Colleen Imgemanson ended up hitting Boutin’s car and knocking it on its side. Michael Boutin was temporarily trapped but was quickly extricated by the Taunton, Massachusetts Fire Department. It took longer to free Colangelo who was airlifted to the Boston Medical Center where he ultimately died. Boutin and her husband sustained injuries requiring a brief hospitalization at the Morton Hospital. A Taunton police officer responded to the scene after receiving reports that a woman had fled the crash on foot. He then observed Ingemanson walking unsteadily not far from the crash site. Ingemanson admitted to having driven the car. The officer reported that she smelled of alcohol and that she could not pass the field sobriety tests that were administered. Her eyes were bloodshot and her speech was slurred. She refused to take the breathalyzer test. Ingemanson has been charged with Motor Vehicle Homicide While OUI, OUI Second Offense. Leaving the Scene of an Accident with Death Resulting, Negligent Operation of a Motor Vehicle and Leaving the Scene with Personal Injury. Charges are now pending in the Taunton District Court.

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Massachusetts Woman Looking At Motor Vehicle Charges, OUI After Fatal Accident

Cases like this one are very difficult to defend. Even if the defendant has a valid defense to the OUI Charge the charge of Leaving the Scene of An Accident With Personal Injury or Death will result in a one year minimum mandatory jail sentence. It is probable that the district attorney in this case will be indicting this case and prosecuting it in the Superior Court. There, if convicted the judge can sentence the defendant to a state prison sentence. The district attorney’s office will undoubtedly be looking for a state prison sentence after a conviction. Even if the defendant wants to plead guilty a state prison sentence will be strongly considered by the judge.

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