Your Breath Test Isn’t The End: Fighting OUI Charges in Massachusetts After the Breathalyzer Scandal
The breath test result in a Massachusetts Operating Under the Influence (OUI) case often feels like undeniable proof. It can be the single most frightening piece of evidence, pushing many people to plead guilty just to put the ordeal behind them.
But here’s the critical truth: The breath test is NOT infallible, and in Massachusetts, it is far from it.
In this Blog OUI (Operating Under the Influence) and DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) will be used interchangeably as synonymous acronyms for the same crime know colloquially as “drunk driving”. However, in Massachusetts the crime is referred to as Operating Under the Influence (OUI).
Recent, historic court rulings have exposed massive, systemic problems with breath test evidence, offering powerful new defense strategies and even the chance to overturn old convictions. If you or a loved one is facing an DUI charge—or was previously convicted—you need to understand the volatile and complex status of this evidence.
🚨 Landmark Rulings: The Breathalyzer Crisis in Massachusetts
The admissibility of breath test results in Massachusetts DWI cases has been at the center of massive, statewide litigation for years. This isn’t just about a single faulty machine; it’s about systemic misconduct that compromised the integrity of thousands of cases.
The key takeaway from the major consolidated cases, including Commonwealth v. Ananias and the recent Supreme Judicial Court (SJC) decision in Commonwealth v. Hallinan, is this:
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Exclusion of Older Breath Tests is Now Law
Due to egregious government misconduct and a failure to properly calibrate the Draeger Alcotest 9510 (the machine used by Massachusetts police), the SJC has determined that breath test results from machines last calibrated and certified between June 1, 2011, and April 18, 2019, are presumptively inadmissible in court.
If your breath test was taken during this period, your attorney has a powerful, often decisive, argument to have that evidence excluded from your trial.
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A Path to Overturn Old OUI Convictions is Open
The SJC’s 2023 ruling in Commonwealth v. Hallinan provides a massive opportunity for justice. If you were convicted or pleaded guilty to an OUI between June 1, 2011, and April 18, 2019, AND your case involved a breath test result, you may now be able to file a Motion for a New Trial or a Motion to Withdraw your Guilty Plea.
The Court found that the misconduct was so egregious that defendants only need to show a “reasonable probability” that they would not have pleaded guilty or been convicted without the breath test evidence.
Crucially, the SJC ruled that if you are granted a new trial and ultimately lose, the principle of double jeopardy prevents you from receiving a harsher sentence or having your prior license suspension re-imposed. This removes a significant barrier of fear for those seeking to challenge their old convictions.
Your DUI Defense Strategy: Beyond the Breath Test
Even if your breath test was taken outside the exclusion period (after April 18, 2019), or if your attorney successfully gets the result thrown out, the Commonwealth still has other evidence. However, without a breath test, their case often becomes significantly weaker, resting entirely on subjective evidence.
A top-tier Massachusetts Drunk Driving defense attorney will strategically attack every element of the prosecution’s case.
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Challenging Scientific Reliability of Breath Tests
The battle over breathalyzers is far from over. A skilled defense attorney will aggressively challenge the accuracy and admissibility of any breath test result by:
Reviewing Calibration & Maintenance Records: Every machine must be regularly calibrated and maintained by the Office of Alcohol Testing (OAT). Any gap, error, or deviation from protocol can render the result unreliable.
Investigating Officer Procedures: The officer must follow a strict protocol, including a mandatory 15-minute observation period before the test. Failure to properly observe the defendant (to ensure no eating, drinking, smoking, or regurgitation occurred) can lead to a falsely elevated result.
Analyzing Medical and Physiological Defenses: Conditions like Gastroesophageal Reflux Disease (GERD), diabetes, or the simple presence of “mouth alcohol” (from a burp or residual alcohol) can produce a falsely high reading.
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Challenging the Stop and Field Sobriety Tests
In the absence of a breath test, the Commonwealth relies heavily on the officer’s observations and Field Sobriety Tests (FSTs).
Unlawful Stop: The police must have reasonable suspicion to stop your vehicle. If the stop was illegal, all subsequent evidence—including observations and FSTs—may be suppressed.
FSTs Are Subjective: FSTs, like the Walk and Turn or One Leg Stand, are notoriously subjective and often administered poorly. Your attorney will question the officer’s training, the conditions (e.g., poor lighting, road surface, weather), and any medical or physical limitations that may have unfairly impacted your performance.
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The Right to Refuse the Breath Test (Implied Consent)
In Massachusetts, you have the right to refuse both the roadside Portable Breath Test (PBT) and the official Breath Test at the police station.
Refusal Consequences: While a refusal leads to an automatic, mandatory license suspension under the Implied Consent Law, that refusal cannot be used against you in court as evidence of guilt.
PBTs are Inadmissible: Crucially, the PBT administered on the roadside is not admissible as evidence against you at trial, and you are not obligated to take it.
🛡️ Don’t Face the Evidence Alone
A conviction for OUI carries severe penalties, including jail time, hefty fines, mandatory drug and alcohol programs, and prolonged license suspensions. The recent litigation in Massachusetts has fundamentally changed the landscape of DUI defense, but understanding and applying these complex legal principles requires an attorney deeply familiar with the nuances of the state’s DWI law and the history of the breath test scandal.
If you have been charged with Drunk Driving, or if you were convicted between June 1, 2011, and April 18, 2019, your time to act is now. The breath test result, while intimidating, does not automatically equal a conviction. Contact an experienced Massachusetts criminal defense attorney immediately to evaluate your case and build a powerful defense.
I have been providing Operating Under the Influence (OUI and OUI Drugs, DUI and DWI) defense services in Massachusetts for over Thirty (30) years. I have been named a “Superior DUI Attorney” by the National Advocacy for DUI Defense, one of the “Ten best attorneys for Massachusetts”, by the American institute of DUI/DWI attorneys, a “Top 100 Trial Lawyer” by The National Trial Lawyers, I have earned the “Clients’ Choice Award” by AVVO, the Client Champion Platinum Award by Martindale-Hubbell and I have won over Ninety Percent (90%) of my trials.*
Call a Top 10 Massachusetts OUI Attorney Now at: (508) 393-4162.
This blog is not intended to be legal advice, if you have been charged with Operating Under the Influence (OUI, DUI, DWI all common acronyms varying by state for “Drunk Driving”) or any other crime in Massachusetts you should call an experienced and successful Drunk Driving lawyer immediately.