Massachusetts DUI Blog

Last week, former All-Star pitcher Dwight Gooden was arrested in New Jersey for driving under the influence of drugs, DUI with a child passenger, leaving the scene of an accident, and endangering the welfare of a child. This weekend, Cardinals linebacker Joey Porter was arrested in California for DUI and resisting arrest. As we have seen time and time again in the news stories of actors and athletes going to jail, the rich and famous are subject to the same motor vehicle laws as the rest of us. What sometimes does seem noteworthy is how spectacularly these people fail to abide by the rules. For example, Joey Porter refused to provide his driver’s license to police, and tried rolling up his window when asked to get out of his car. Porter also reportedly slapped the officer’s hand when the officer attempted to open the car door. Doc Gooden was arrested at 8:50 in the morning, after rear-ending another vehicle and leaving the accident scene with his five-year-old son in the car.

Although in Massachusetts, the police may not compel a defendant to submit to field sobriety tests, there is a big difference between politely declining to take tests and slapping an officer’s hand away. Regardless of the jurisdiction, failure to act courteously to other drivers and the police will only increase the likelihood of additional charges and a more difficult case to try.

As stated previously, often the most significant evidence against a defendant is the result of the breath test. While every breath test operator in Massachusetts must be certified to operate the Alcotest 7110 (the only breath testing device approved in this state for DUI prosecutions), when it comes to convincing jurors about how this device arrives at accurate numbers, many of these same officers have difficulty.
Another major issue with the “science” behind breath testing devices is the role of temperature. In order for Henry’s Law to be properly applied when the breathalyzer converts breath alcohol to blood alcohol (see previous posting), the device assumes a constant body temperature of 34 degrees celsius. This is why the simulator (which generates the middle number in a breath test) heats the solution to 34 degrees to approximate the temperature of the subject’s breath going into the machine. However, in reality not everyone has a constant breath temperature of exactly 34 degrees. Some people have a normal, but slightly higher breath temperature or may be running a slight fever without other obvious symptoms. A higher breath temperature will always result in an artificially high breath test reading, even with a properly functioning breath test device. Even though it is extraordinarily easy to do, the operators of the Alcotest in Massachusetts are not required to test their subjects’ actual temperature before administering breath tests. Given the many other shortcomings of these devices, properly explaining this issue helps to generate reasonable doubt in the minds of jurors.

Many times in a DUI trial, the most significant evidence against a defendant is the result of the breath test administered at the police station. Every breath test operator in Massachusetts must be certified to operate the Alcotest 7110 (the only breath testing device approved in this state for DUI prosecutions). But when it comes to convincing jurors about how this device arrives at accurate numbers, many of these same officers have difficulty.

At the conclusion of the breath test, the Alcotest produces a printout showing a blood alcohol percentage. But this machine does not even test blood. Instead, it tests only the breath of the person blowing into the machine. There is a relationship between the amount of alcohol in a person’s breath (a gas) and the amount in a person’s blood (a liquid). This breath-to-blood relationship, arising out of a principle known as Henry’s Law, is assumed to be 1 to 2100 by the breath test maching. But this so-called “partition ratio” is only an average that the breathalyzer applies when converting a breath alcohol result to a blood alcohol result to use in court. The actual ratio varies among different people, and even varies within the same person at different times.

Scientists have determined that that the normal range of the partition ratio varies in people from 1 to 1100 to 1 to 3000. Why does this matter? A person with a partition ratio of 1 to 1500 and an actual blood alcohol content of .07 percent would generate an artificially high breath test reading of .10 on a properly functioning breathalyzer, since the machine is applying a ratio of 1 to 2100. And since the police have no way of testing an individual’s actual partition ratio, they must come to court and acknowledge that the partition ratio that the breathalyzer machine assumes is just an average of the population, which could result in an artificially high reading. Given the many other shortcomings of these devices, properly explaining this assumption can go a long way in generating reasonable doubt in the minds of jurors.

Many people call our office and describe the field tests that the officers had them perform prior to arrest. And while a majority are aware that they may refuse to submit to a breathalyzer, very few know that they may also refuse to perform the field sobriety tests. These tests, ranging from the alphabet, horizontal gaze nystagmus, nine-step walk and turn, and one leg stand, are often testified about in court by the police when describing why they formed their opinion that the defendant was impaired by alcohol. However, these tests cannot be forced upon an individual, and if a subject politely refuses to perform the tests, this refusal is not admissible in court. The best way to decline is to simply state, “My attorney says to never perform such tests.” To do so means that the police will need to make their decision to charge based on evidence other than the evidence furnished by the subject. It may not result in a decision not to arrest, but the court case will usually look much better down the road.

The Massachusetts State Police have announced that a “sobriety checkpoint” will be implemented on a secondary state highway on Friday, March 26, 2010 into Saturday, March 27, 2010 in Worcester County.
The State Police often team up with local law enforcement when operating these checkpoints, which may utilize over a dozen officers at a time as well as mobile breath testing equipment. Many of these roadblocks are part of the nationwide “Over The Limit, Under Arrest” mobilization, for which state and federal grant money is used to fund police overtime, equipment and education.
In 2009, the constitutionality of these checkpoints was again called into question, but the Massachusetts Supreme Judicial Court rejected the challenge. However, the police must strictly comply with the many requirements that the Court has outlined, and the failure to do so may result in the exclusion of all evidence obtained against a defendant.
If you are arrested following a roadblock or “sobriety checkpoint,” contact an attorney who knows how to defend these cases successfully. Call Brooks & Crowley LLP at 781-251-0555.

The Massachusetts State Police has announced that a “Sobriety Checkpoint” will be implemented by the Massachusetts State Police on a Secondary State Highway in Bristol County. Bristol County is made up of twenty cities and towns, including Taunton, Raynham, Rehoboth, Fall River and New Bedford. The checkpoint will begin Saturday, March 20, 2010 and continue into Sunday, March 21, 2010.
The State Police often team up with local law enforcement when operating these checkpoints, which may utilize over a dozen officers at a time as well as mobile breath testing equipment. Many of these roadblocks are part of the nationwide “Over The Limit, Under Arrest” mobilization. State and federal grant money is used to fund police overtime, equipment and education.
The constitutionality of these checkpoints were recently upheld by the Massachusetts Supreme Judicial Court. However, the police must strictly comply with the many requirements that the Court has outlined, and the failure to do so may result in the exclusion of all evidence obtained against a defendant.
If you are arrested following a roadblock or “sobriety checkpoint,” contact an attorney who knows how to defend these cases successfully. Call Brooks & Crowley LLP at 781-251-0555.

Colonel Marian J. McGovern, Superintendent of the Massachusetts State Police, has recently announced that a “Sobriety Checkpoint” will be implemented by the Massachusetts State Police on a Secondary State Highway in Hampden County. The checkpoint will begin Friday, March 12, 2010 and continue into Saturday, March 13, 2010.
The State Police often team up with local law enforcement when operating these checkpoints, which may utilize over a dozen officers at a time as well as mobile breath testing equipment. Many of these roadblocks are part of the nationwide “Over The Limit, Under Arrest” mobilization. State and federal grant money is used to fund police overtime, equipment and education.
The constitutionality of these checkpoints were recently upheld by the Massachusetts Supreme Judicial Court. However, the police must strictly comply with the many requirements that the Court has outlined, and the failure to do so may result in the exclusion of all evidence obtained against a defendant.
If you are arrested following a roadblock or “sobriety checkpoint,” contact an attorney who knows how to defend these cases successfully. Call Brooks & Crowley LLP at 781-251-0555.