Appeals Court, June 4, 2014

When a defendant, under arrest for operating under the influence of alcohol consents to take a breath test, the two breath samples must agree within 0.02% of one another or the test is not valid and a new test must be administered.

After being arrested for operating under the influence of alcohol, the defendant was given a breath test; however, the two samples differed by 0.022% and accordingly the test ticket read, "Test Results: Test Not Completed: TESTS OUTSIDE TOL[ERANCE]."  The defendant filed a motion to suppress the breath test results arguing that the test results were outside the allowable range of 0.02% and a new test should have been administered.  The defendant pointed to the training manual for the Alcotest 9510 which provides: "If first two [breath] samples DO NOT agree within +/- 0.02% 'TEST OUTSIDE +/- TOL' will appear on display briefly."  In addition, 501 Code Mass. Regs. § 2.14(4) (2010) provides that, if the administration of a prescribed sequence "does not result in breath samples that are within +/- 0.02% blood alcohol content units, a new breath test sequence shall begin."    The judge denied the defendant's motion reasoning that the regulation required rounding the differential of .022 percent to .02 percent because it "simply says 0.02.   It doesn't take it out to the third decimal point."  She explained, "If [the differential] were [for example] 0.026, then I'd say we have an issue here because we can round it off to 0.03. But you're 0.022."  A single justice of the Supreme Judicial Court allowed the defendant's application for leave to pursue an interlocutory appeal.

The Commonwealth argued that the regulation requires truncation to two decimal places of any differential between breath samples.  The Court disagreed reversing the Judge’s denial of the defendant’s motion to suppress interpreting 501 CMR 2.14(4) to mean the differential in the defendant's test results must be "within +/- 0.02% blood alcohol content units and the defendant’s was results were not.   “Nothing in the regulations or record pertaining to testing procedures and comparison of results to determine their validity directly supports truncation of the third decimal place of a differential between breath samples obtained from a breath testing instrument employing a gas calibration standard.”

2.14: Administration of a Breath Test: Procedures

(1)   The arrestee’s consent to a breath test shall be documented by the arresting officer or the      BTO.

(2)   The breath test shall be administered by a certified BTO on a certified breath test device as defined in 501 CMR 2.02.

(3)   The breath test shall consist of a multipart sequence consisting of:

        (a) one adequate breath sample analysis;

        (b) one calibration standard analysis; and

        (c) a second adequate breath sample analysis.

(4)  If the sequence described in 501 CMR 2.14(3) does not result in breath samples that are within +/- 0.02 blood alcohol content units, a new breath test sequence shall begin.