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.
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.
Located in downtown Boston, the Law Offices of Stephen Neyman defends drivers throughout eastern Massachusetts who are accused of OUI and related offenses. If you or someone you care about is facing drunk driving charges, you should talk to us right away about your legal options and your rights. To set up a confidential consultation, please contact us online or call (617) 263-6800 today.