Supreme Judicial Court (October 16, 2009)

When prosecuting an Operating Under the Influence offense, the Commonwealth may only introduce evidence of the lower of the two breath sample results.

The defendant was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor. During booking the defendant consented to take a breath test. The results, as reported on the Implied Consent Report Form, showed a blood alcohol level of .09, a calibration standard analysis of .15, and a blood alcohol level of .10. The Commonwealth filed a motion in limine to admit both of the defendant's blood alcohol readings. The District Court judge ruled that, in accordance with statutory and regulatory requirements, the Commonwealth could only introduce evidence of the lower of the two results. The Commonwealth sought relief from the judge's decision pursuant to G.L. c. 211, § 3.

The Court agreed with the lower court judge, relying on G. L c. 90, § 24K and 501 CMR 2.56, 2.57.

G.L. c. 90, § 24K:
Chemical analysis of the breath of a person charged with a violation of this chapter shall not be considered valid under the provisions of this chapter, unless such analysis has been performed by a certified operator, using infrared breath-testing devices according to methods approved by the secretary of public safety. The secretary of public safety shall promulgate rules and regulations regarding satisfactory methods, techniques and criteria for the conduct of such tests, and shall establish a statewide training and certification program for all operators of such devices and a periodic certification program for such breath testing devices; provided, however, that the secretary may terminate or revoke such certification at his discretion.

Said regulations shall include, but shall not be limited to the following: (a) that the chemical analysis of the breath of a person charged be performed by a certified operator using a certified infrared breath-testing device in the following sequence: (1) one adequate breath sample analysis; (2) one calibration standard analysis; (3) a second adequate breath sample analysis; (b) that no person shall perform such a test unless certified by the secretary of public safety; (c) that no breath testing device, mouthpiece or tube shall be cleaned with any substance containing alcohol.

501 CMR 2.56(6):
(1) A breath test shall be valid and admissible in a court of law,
if it consists of:
(a) a multipart procedure in which two adequate subject breath samples agree within +/- 0.02 blood alcohol content units, and
(b) the calibration standard analysis reads 0.14%, 0.15%, or 0.16%.

501 CMR 2.57:
Upon completion of a valid test, the test results shall be made
available to the individual under arrest. If the two adequate breath samples,
expressed in the two decimal mode, differ within +/- 0.02 blood
alcohol content units, the lower of the two adequate breath
samples shall be taken as the individual under arrest's blood alcohol level.

The Court reasoned that the imposition of a two-part procedure to obtain a defendant's blood alcohol level pertains to the validity of the breathalyzer test, and it does not speak to the evidentiary value. "To otherwise permit introduction of a marginally higher breath sample result only invites jurors to do what the regulatory framework prohibits, namely, to infer, or conclude, that the lower breath sample result is not accurate and that the defendant's blood alcohol level has been underreported."

Note in footnote 8: "We do not address the situation where a defendant presents expert testimony suggesting that his blood alcohol level had risen from the time he operated a motor vehicle to the time the breathalyzer test was administered, and seeks to bolster that defense with the results of both adequate breath samples. While there exist cases that are soundly left to the discretion of the trial judge, this case is not such a case."