Appeals Court (July 17, 2008)

501 Code Mass. Regs. § 2.55 which requires a breath test operator to observe the arrestee for fifteen minutes prior to administration of the breath test, does not preclude observation outside the breath testing room prior to being advised of his rights and consenting to the test.

The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of G.L. c. 90, § 24(1) (a) (1) and consented to take a breath test. The defendant filed a motion to suppress the breath test result based on 501 Code Mass. Regs. § 2.55, which states that the breath test operator "should" keep the defendant in observation for fifteen minutes. The purpose of the fifteen-minute waiting period is to ensure that the defendant has not brought any substance into his mouth, such as food, drink, or regurgitation by burping or hiccough, that would have had a contaminating impact on the accuracy of the results, and to permit a sufficient lapse in time to allow such possible contaminants to clear. Commonwealth v. Kelley, 39 Mass.App.Ct. 448 (1995). The District Court judge allowed the defendant's motion to suppress finding that the breath test operator failed to conduct pre-test observation of the defendant for fifteen minutes at the testing location after the defendant was advised of his rights and consented to the test. The Commonwealth filed an interlocutory appeal.

The Appeals Court refused to adopt the lower courts narrow interpretation of the regulation ruling that the fifteen minute waiting period is not exclusive to the period of time after the defendant is advised of his rights and consents to take the test. On the facts of this case, however, the Court found that the Commonwealth failed to meet its burden of showing compliance with the approved satisfactory methods for conducting breath tests. While the officer testified as to his knowledge of the requirement and purpose of the observation period, he also described the fifteen-minute period as a waiting period for the breathalyzer to warm up. Critically, the officer did not testify to how he made his observations on this occasion or what he observed, including whether he observed a contaminating event or not. Instead, he testified merely about the chronology of events preceding the test, estimating times at which various events occurred, and the length of his "interaction" with the defendant.