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Massachusetts DUI Attorneys

Contact Attorney Jason Chan

Attorney Jason Chan

244 Brighton Avenue, Suite 105
Allston MA 02134


Phone: 781-343-1DUI (781-343-1384)
Fax: (617) 254-8001

Many Massachusetts DUI Attorneys have been challenging the breathalyzer tests.  The first thing you need to know about the breathalyzer is that there are two types.  There is the portable breathalyzer and then there is the breathalyzer at the police station.  The portable breathalyzer is a much smaller device and is usually offered to you on the side of the road. The portable breathalyzer uses something called fuel cell technology. The problem with the portable breathalyzer is that it isn’t very accurate. The portable breathalyzer’s reading can be severely affected by a number of different factors. One typical problem is that the portable breathalyzer tends to be measure breath alcohol.  As a result of these issues, the courts have not recognized the portable breathalyzer as a reliable machine and will not allow the portable breathalyzer result to be used as evidence. 

 The second type of breathalyzer is offered at the police station.  This type of breathalyzer is a stationary device.  Once you look at the machine you can see that is a much larger than the portable device.  The stationary breathalyzer uses something called infrared technology that the courts have ruled to be an accurate measure of a person’s blood alcohol level.  It is much more difficult to have a court rule that the stationary breathalyzer result should not be used as evidence against you. 

Even though the stationary breathalyzer is considered by the court as accurate there remains a lot of uncertainty.  To understand this uncertainty you need to understand how the machine actually works. The machine takes breath samples and uses a formula to convert that to a blood alcohol result.  Because the machine isn’t actually taking the blood of a person it can never be 100% accurate.  The machine uses a lot of assumptions to convert the breath sample to a blood alcohol result.  The courts have ruled that these assumptions and the formulas used to convert the breath sample to blood alcohol result are accurate enough to allow into evidence. 

One of the ways to kick out the breathalyzer reading from being used against you at trial is to argue that the machine wasn’t working correctly.  Every machine needs to have periodic testing to ensure that it is working properly.  It is important that the machine has current testing to ensure that it is working properly. If the paperwork isn’t current then the breathalyzer results should be tossed out.  Not only does the breathalyzer machine’s testing need to be current, the operator’s certification need to be current. The operator of the machine is usually a police officer and his certification needs to be up to date or the breathalyzer result should be thrown out. 

Another thing to check is to make sure that the police officer actually waited fifteen minutes prior to starting the breathalyzer test. During the fifteen minutes, the police officer needs to ensure that you don’t burp, chew gum, vomit, drink alcohol or do anything that may affect the breathalyzer result.  If the police officer fails to wait the fifteen minutes, your lawyer can file something called the Pierre motion to try to toss out the breathalyzer.  Now certain police stations and barracks have video that shows the breathalyzer testing process. However, if a police station doesn’t have that video it may be difficult to show that the police officer violated protocol. 

Finally, the breathalyzer test must be done within 3 hours of your arrest. One of the major problems with the breathalyzer is that it supposedly tests your blood alcohol level at the time of the test.  Regardless of its accuracy, the breathalyzer can’t tell the court what your blood alcohol level was at the time that you were driving your car.  The courts have ruled that the prosecutor don’t need to bring in an expert to prove what your blood alcohol level was at the time you were driving.  As long as the breathalyzer was taken within 3 hours of your arrest, the breathalyzer result can be used against you.  As you can see, the breathalyzer isn’t a fool proof piece of evidence.  After all, the breathalyzer is just a machine that measures your breath and not your blood.  Even though its accuracy is questionable, the courts have ruled that it can be used as evidence against you.  


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