OUI Liquor MGL c 90 § 24; Draeger Alcotest 9510 – Conviction vacated and client found Not Guilty after trial.
- Steven Topazio wrote this June 20, 2018 at 10:59 pm
The client, a 68 year old business professional, was arrested for drunk driving after being observed operation the wrong way on Route 290 and thereafter being stopped by police. The client was observed to have glassy and bloodshot eyes and the Trooper detected an odor of alcoholic beverage emanating from the vehicle. The client was asked how much he had to drink that evening and admitted to consuming a couple of drinks while waiting for his dinner. The Trooper being concerned about the client’s ability to operate a motor vehicle safely asked him to submit to some field sobriety exams. Following the field sobriety tests, the client was arrested. At the station the client submitted to a Breath Test with the results of (0.90, 0.80, 0.87). The client hired Attorney Topazio to defend him. Massachusetts has a “per se” law meaning that if the Commonwealth can prove by means of a breath test that an individual’s BAC (Blood Alcohol Content) is .08%, or greater, then by statute he will legally be presumed to be impaired and lack the ability to operate a motor vehicle safely. As a result of the “Per Se” law, the client initially admitted to sufficient facts to resolve his case and received a CWOF on this OUI case. Following the resolution of this case, Attorney Topazio filed a Motion for New Trial alleging newly discovered evidence which would have excluded the Breath Test results. The court agreed and granted the motion for New Trial and vacated his client’s previous admission and restored the OUI case to the trial list. Attorney Topazio alleged that newly discovered evidence surfaced in his client’s case regarding the fact that all breathalyzer tests using the Draeger 9510 calibrated and certified between June of 2012 and September 14, 2014, subject to the possibility of a case-by-case demonstration of the reliability of OAT’s calibration of a particular device to a trial judge in the court in which the Commonwealth seeks to offer the result as evidence, have been excluded as evidence in any OUI trial. The exclusion of the Breath Alcohol Content Percentage Results Using the Alcotest 9510 and Any Opinion Testimony for any breathalyzer results from a machine calibrated and certified before September 14, 2014 are in question according to the Memorandum Of Decision On Consolidated Defendants’ Motion To Exclude Breath Alcohol Content Percentage Results Using The Alcotest 9510 And Any Opinion Testimony by Robert A. Brennan, Justice of the District Court, Dated February 16, 2017. Today Attorney Topazio proceeded to trial with the previous Breath Test being excluded, and his client was found not guilty.