The Kickham Comment - Boston Criminal Attorney Blog

As anyone who has visited my Massachusetts OUI/DUI website pages knows, Massachusetts law currently requires Ignition Interlock Devices for anyone convicted of a 2nd or greater OUI/DUI offense in Massachusetts. Currently, 1st offenders are not required to obtain such a system.

Required by Melanie’s Law since 2006 for anyone convicted or pleading guilty to a second OUI offense or higher, Ignition Interlock Devices require a driver to blow into a dash-mounted device that analyzes the driver’s Blood Alcohol Content (BAC.) If the test register above a .02, the engine will not start. When ordered by a court for multiple OUI/DUI offenders, the defendant must pay for the device and its installation. The devices are only available from a list of state-approved vendors, and they are quite expensive. Further, the driver is required, every month, to download the data stored in the device’s hard drive, to the Massachusetts Registry of Motor Vehicles. The RMV will analyze the data, which will reflect all activity related to the operation of the unit, and critically, all BAC readings each time the operator attempted to start the car.

Recently, an effort has begun in the Massachusetts Legislature to amend the current law, to require the Ignition Interlock Device Program for first-time OUI/DUI convictions. State senator Robert Hedlund (R – Weymouth,) together with the support of Mothers Against Drunk Driving and 7 other state legislators, has sponsored the legislation. The measure, Senate Bill 1746, “An Act Relative to Ignition Interlock Devices,” is currently being debated before the Transportation Committee. The bill’s sponsors point out that presently, 27 states require ignition interlock for first time OUI/DUI offenders, and they argue that statistics have proven that these devices can reduce drunk driving recidivism by a figure as high as 64 percent.

Very recently, the Massachusetts Supreme Judicial Court (SJC) announced a ruling that will make it more difficult for defendants who are accused of a Massachusetts drunk driving/OUI offense to challenge the accuracy of Breathalyzer test results.

In a case that began in Greenfield District Court, a woman was convicted of operating under the influence in Massachusetts. When she was stopped by police, she agreed to take a Breathalyzer test, which produced a result higher than the maximum allowed in Massachusetts – an .08. Massachusetts is a “Per Se” state, meaning that breathalyzer or blood test results of higher than .08 for drivers over the age of 21, or higher than.02 for drivers under the age of 21, constitute prima facie evidence of driving under the influence in Massachusetts. At this woman’s trial, the Massachusetts breathalyzer test results were admitted into evidence, and the prosecution introduced records demonstrating that the particular breathalyzer machine had received an annual certification and was maintained and calibrated regularly as required under relevant Massachusetts regulations. The woman was convicted of driving under the influence.

She appealed her conviction, arguing that the maintenance and certification records introduced by the prosecution constituted witness testimony against her, and that under the Sixth Amendment to the U.S. Constitution, her lawyer should have been given the right to cross-examine the technician who had prepared the reports. The Sixth Amendment is often referred to as the “Confrontation Clause” of the Constitution , as it guarantees the rights of a defendant in a criminal trial to face his accuser and cross-examine that person in court.

In June 2009, the U.S. Supreme Court (SCOTUS, among the legal profession,) issued a landmark decision in the area of testimonial evidence in drug prosecutions, Melendez-Diaz v. Massachusetts. The ruling in that case essentially held that certificates of drug content analyses produced by a laboratory at the request of the prosecution, and introduced into evidence by the prosecution to prove what that substance is, are inadmissible without the in-court testimony of the laboratory technician who conducted the testing. Such drug analysis certificates are attached to an affidavit, signed by the chemist or laboratory technician who conducted the testing, stating that the analysis report is accurate.

Up until this ruling, prosecutors in Massachusetts who were trying Massachusetts drug offense charges, would simply introduce the lab results along with the affidavit of the technician who conducted the test, and the results would be admitted into evidence as conclusive as to what the substance actually is.

This ruling changed that procedure, and was a considerable blow to prosecutors trying drug cases, because it meant that each and every time the prosecution intended to introduce a drug analysis certificate into evidence to prove that the substance was an illegal drug, they henceforth had to bring in the actual chemist or technician who conducted the test, to testify as to the details of the testing. The court ruled this way, because it determined that the absence in court of the actual person who conducted the drug testing, violated the Sixth Amendment’s “Confrontation Clause” guarantee. This provision of the U.S. Constitution safeguards the right of a defendant to confront the witnesses against him, in person. The question that the court grappled with was whether the affidavits that accompany such drug analysis certificates are “testimonial,” thus rendering the affiants “witnesses” who would be subject to the defendant’s right of confrontation under the Sixth Amendment . The court answered “yes” to both questions. Now, in prosecutions involving Massachusetts drug offenses, prosecutors must bring the lab technicians who conducted drug analyses, into court for cross-examination by the defendant’s attorney. As a Dedham, Massachusetts drug offenses lawyer, I think this is extremely important, because through the cross-examination process, information can be brought before the jury as to such important items as: The technician’s education, training and experience; The method and technique that was used to test the substance; Prior testing errors that the technician may have previously been involved in; How many tests had he or she conducted on the day that the contested sample was tested; as well as several other areas.