A person who is suspected of operating under the influence (OUI) of drugs or alcohol on Cape Cod will probably be given a breathalyzer test at some point following his or her detention by police. Under Massachusetts law, there is a 15-minute waiting period prior to the administration of the test.
The purpose of the waiting period is to ensure that the defendant has not brought something into his or her mouth (such as food, drink, or a regurgitated substance resulting from a burp or hiccough) that would contaminate the breath sample or compromise the accuracy of the test. When this waiting period is not strictly respected, the defendant may have an argument that the test results should be suppressed and not used as evidence against him or her at trial. However, this argument will not prevail in every Massachusetts OUI case, since the resolution of such matters is very fact-specific.
Facts of the Case
In a recent criminal case that was appealed to the Massachusetts Appeals Court, the defendant was a man who was arrested for motor vehicle homicide by reckless or negligent operation while under the influence of alcohol or with a blood alcohol content (BAC) of .08% or greater after he allegedly struck and killed a pedestrian in 2011. Following a nine-day jury trial, the defendant was convicted as charged. He appealed.
Decision of the Court
On appeal, the defendant argued that the suppression judge erred in denying his pretrial motion to suppress the results of the breathalyzer test that was administered to him. As grounds, the defendant pointed out that the breath test operator did not personally observe him for 15 minutes prior to administering the test. According to the defendant, this violation of 501 Code Massachusetts Regulations § 2.13(3) should have resulted in the exclusion of the test from the jury’s consideration.
The appellate court disagreed and affirmed the defendant’s conviction, noting that there were multiple officers at the defendant’s booking and that the defendant was in the presence of at least one of them continuously for 28 minutes prior to his breathalyzer test. Since this was confirmed both by the testimony of one of the officers and by video evidence, the court opined that any deviation from “meticulous compliance” with the 15-minute rule went to the weight of the evidence rather than the admissibility of the results of the test in question.
The court also found the defendant’s arguments that he was entitled to a new trial based on the admission of prior testimony of an unavailable witness and alleged improprieties in the prosecutor’s closing argument to be without merit.
Been Arrested for DUI in the Cape Cod Area?
If you have been arrested for driving under the influence, you likely have many questions and concerns about your case. At the Law Offices of John C. Manoog, III, our experienced Cape Cod drunk driving attorneys can go over the details of your arrest, breathalyzer results, and related matters to determine an appropriate defense against the charges lodged against you. Call us at 888-262-6664 to schedule an appointment. We have offices in both Plymouth and Hyannis.
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