NOT GUILTY: .13 Breathalyzer Thrown Out After Dental Retainer Discovered During Observation Period — OUI Case Collapses

NOT GUILTY: .13 Breathalyzer Thrown Out After Retainer Discovered During Observation Period — OUI Case Collapses

Today, on Monday, July 27, 2026, Attorney Michael Murray secured a NOT GUILTY verdict after trial in Commonwealth v. Defendant, Docket No. 2567 CR 1852, on a charge of Operating a Motor Vehicle While Under the Influence of Alcohol (OUI) — despite the fact that the defendant had recorded a breathalyzer result of .13, well over the legal limit of .08.

How? The breath test never made it to trial.

The Discovery: A Retainer and a Violation

Prior to trial, I obtained all available video evidence, including the booking video from the police station. This is standard practice — but what I found in that video was anything but routine.

During the fifteen-minute observation period required by Massachusetts law before administering a breath test, my client disclosed to the officer that she was wearing a removable retainer in her mouth.

That disclosure changed everything.

The Law: 501 CMR §2.55 and Commonwealth v. Pierre

Under 501 CMR §2.55, the breathalyzer operator must observe the subject for a continuous fifteen minutes before administering the test. The purpose of this observation period is to ensure that nothing enters the subject’s mouth that could affect the accuracy of the test — including food, drink, regurgitation, or foreign objects.

In Commonwealth v. Pierre, 72 Mass.App.Ct. 230 (2008), the Appeals Court made clear that violations of this observation period can render breath test results inadmissible.

A removable retainer is a foreign object in the mouth. When my client disclosed its presence during the observation period, the officer should have ensured proper protocol was followed. The video showed otherwise.

The Motion: Breath Test Suppressed

I filed a motion to suppress the breath test based on the observation period violation. The court reviewed the evidence, including the booking video.

The motion was ALLOWED. The .13 breath test was excluded from trial.

The Trial: What Remained

Without the breath test, the Commonwealth was left with two field sobriety tests and the officer’s observations. Under cross-examination, the officer testified:

  • My client passed one of the two field sobriety tests
  • His observations — bloodshot eyes and odor of alcohol — were circumstantial in nature
  • Those observations were full of reasonable doubt

The officer testified fairly and honestly. And that honest testimony revealed the weakness of the Commonwealth’s case without the breath test.

The Judgement: NOT GUILTY

After trial, my client was found NOT GUILTY of OUI. No conviction. No license loss. No criminal record for this charge.

Why This Case Matters: The Breath Test Is Not Invincible

Many people assume that a breath test over .08 means automatic conviction. It does not.

Massachusetts has strict regulations governing how breath tests must be administered. Violations of the observation period, improper calibration, operator certification issues, and other procedural failures can all result in suppression of the test.

The key is thorough investigation. In this case, the evidence that won the case was hidden in a booking video that many attorneys might never request — or never watch closely enough to catch the critical moment.

A skilled Massachusetts OUI defense attorney knows where to look, what to look for, and how to use what they find.

Facing OUI Charges with a Breath Test Over .08?

Do not assume your case is hopeless. Breath test results can be challenged. Contact Attorney Michael Murray for a free consultation to discuss whether suppression may be possible in your case.

Call (508) 393-4162 or visit mpmdefense.com.