The OUI Case You Shouldn’t Miss Out On!

        Wishing you a blessed day and a beautiful week ahead! This week, I want to bring before you an OUI case which was reversed on two counts and affirmed on one. I thought this case was interesting because I had no idea a breathalyzer, namely the Draeger machine, could be deemed unreliable. Breathalyzers are highly relied upon by police officers and play a major role in criminal convictions. An unreliable breathalyzer is counterproductive for the justice system. For those of you interested in Criminal Law, I especially think you will find this to be a great read.

        The Defendant was convicted after a jury trial on three counts: (1) operating a motor vehicle with a percentage, by weight, of alcohol in his blood of greater than 0.08, second offense, G.L.c. 90, Section 24(1)(a)(1); (2) leaving the scene of an accident with property damage, G.L.c. 90, Section 24(2)(a); and (3) negligent operation of a motor vehicle, G.L.c. 90, Section 24(2)(a). The Defendant appealed. 

        The Defendant was tried on two theories with regards to count one: (1) operating a motor vehicle with a percentage, by weight, of alcohol in his blood of 0.08 or greater; and (2) operating a motor vehicle under the influence of intoxicating liquor. The jury found the Defendant guilty on the first theory. The Defense argued that such a conviction on count one should be reversed because the Draeger machine that was used as a breathalyzer, was not reliable. 

       The Defendant was given the breathalyzer test at the Swansea Police Department using a “9510 Draeger machine” (Draeger machine). The Defendant voluntarily provided two samples, as required, to get a valid test result. The Draeger machine reported that the Defendant’s blood alcohol level was above the 0.08 legal limit. 

        The Defense argued that in light of their expert testimony, “A reasonable jury could not have found the results to have been accurate”, based on a prior Superior Court action that had challenged the reliability of the Draeger machine, and that, “There was insufficient evidence to support the jury’s finding that the Defendant had a blood alcohol percentage greater than 0.08.” The Commonwealth agreed that reversal of the Defendant’s per se theory of an OIU conviction should be reversed supported by the Superior Court ruling but they do not concede the evidence was insufficient. 

        The Appeals Court concluded that, “The verdict in this case cannot operate as either an acquittal or a conviction, and that consequently, double jeopardy principles do not bar the Defendant’s retrial on the impair operation theory”. The Court made this finding based on the case of Commonwealth v. Brown, 470 Mass. 595 (2015). Therefore, for the first count, the judgement was reversed the verdicts were set aside and judgement was entered for the Defendant. The court also stated the Defendant may be retried on this count. 

        The Defense then argued on the second count of “Leaving the scene of an accident with property damage”. The Defense argued that the Commonwealth presented insufficient evidence that the Defendant indeed committed the offense. Specifically, the Defense argued that the Commonwealth failed to prove that the property in question, a side guardrail off of I-195, was, in fact, damaged. There were no pictures nor any other evidence of the guardrail prior to the alleged offense.

           In conclusion, the Court reversed Defendant’s convictions on Counts one and two, and affirmed the decision on count three (article mainly focused on counts one and two). The Defendant was to be retried on the charge of driving while under the influence of intoxicating liquor. (Referenced MA Lawyers Weekly, V. 49, No. 30)

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