INVALID BREATHALYZER TESTS IN MASSACHUSETTS
Breath tests subject to challenge are those that were performed by a Draeger 9510 breathalyzer machine that was "calibrated" between June 2011 and April 18, 2019. Note that the relevant dates are the dates of calibration--not the date that the breath test was administered.
Tests performed by such machines have been declared to be presumptively unreliable--frequently providing sufficient reason to set aside a conviction and obtain a new trial--and the results are to be excluded in any subsequent trial except at trials involving death or seriously bodily injury or a fifth or subsequent offense, in which cases the Commonwealth may attempt to establish admissibility.
Note that even without a breath test, other evidence, such as a booking video or the officer’s assessment of field sobriety tests, may be admissible at a new trial.
To sufficiently assess the merits (and risks) of seeking to set aside a conviction following an invalid breath test, your attorney must:
obtain and review your criminal history record
obtain and review your driving history record
communicate with trial counsel
obtain and review the police report
obtain and review the plea transcript--if the case was resolved by plea
(some judges anticipated this issue when accepting a plea or admission)
obtain and review the trial transcript--if the case was resolved by trial
obtain a booking video (if made and persevered)
It may require several months to obtain and review the necessary information, assess the merits, prepare a motion, obtain a hearing on the motion, receive a decision on the motion and, finally, communicate with registry of motor vehicles.
Allow the Law Office of Richard M. Russell to assist you in maneuvering these complexities.
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