1:12. .08% or greater

Research References

West's Key Number Digest, Automobiles &key;332

West's Key Number Digest, Automobiles &key;355(6)

West's Key Number Digest, Automobiles &key;411

C.J.S., Motor Vehicles §§1382 to 1394

C.J.S., Motor Vehicles §§1397 to 1411

C.J.S., Motor Vehicles §1545

On June 30, 2003, the Massachusetts legislature approved a bill creating a per se law.1 The new law created a separate category of operating under the influence prosecution based solely on the result of a chemical test reading of 0.08% or greater. The time within which a test must be administered in order for it to be admissible is not defined by statute. Most states require that the test be conducted within a specific number of hours. Our Supreme Judicial Court has ruled that the test must be administered within a reasonable amount of time following the operation of the motor vehicle.

In Commonwealth v. Colturi the court held that the passage of up to three hours between testing and operation is a reasonable time for this purpose. The Court went on to state that “the facts and circumstances in particular cases may establish that a lesser or greater time period ought to be applied [and that] such determinations fall within the sound discretion of the trial judge”. The court went on to state that “[t]he facts and circumstances in particular cases may establish that a lesser ... time period ought to be applied”. The reports of the death of the defense of a breath test case have been greatly exaggerated. All of the same arguments available to the defense prior to the per se law are still currently available. The prosecution must still comply with 501 CMR and the defense may still challenge the scientific accuracy of the result and the reliability of the test and testing procedure.

Challenges based upon 501 CMR, the science of the test, the theory of breath testing, whether the client was a proper subject for the test and other defenses are discussed in Chapter 5, The Chemical Test. The jury instruction for per se cases is included in Appendix H.

In deciding whether the test given to the defendant to measure the alcohol level in his/her blood is reliable evidence, you may consider a number of factors, including:

  • the qualifications and your assessment of the credibility of the person who gave the test;
  • the pre-test procedures that were employed;
  • whether the device used to determine the alcohol content of the defendant's blood was in good working order at the time the test was administered;
  • whether the test was properly administered;
  • and any other factors that you believe are relevant.

When the defendant presents evidence to rebut the commonly accepted opinion that an instrument is reliable, then the burden is on the Commonwealth to establish the admissibility of the results. The defendant has the right to present a qualified expert to challenge the accuracy of the breath test results in a particular case. It is common in other jurisdictions to challenge the accuracy of the reading based upon a “disconnect”. A example of a disconnect case would be where the breath test reading is 0.17% and the subject passes most of the field sobriety tests. The reading does not fit the physical observations and therefore is probably inaccurate.

1:13. Involuntary intoxication

Research References

West's Key Number Digest, Automobiles &key;332

C.J.S., Motor Vehicles §§1382 to 1394

“The Commonwealth has the burden of proving not only that the defendant was drunk, but also that this condition was caused by the voluntary use of intoxicating liquor.” If such a defense is raised, cross-examination of the defendant about her drinking habits was competent where she had stated she was not a drinking woman. In the case involving the combined effect of alcohol and prescription medication, if the defendant had reason to know that her use of alcohol combined with her prescription medications might impair her mental faculties, and such a combined effect was in fact the cause of her diminished abilities, she would be deemed criminally responsible for her actions. If, on the other hand, she had no such foreknowledge, or if her mental defect existed wholly apart from any use of alcohol, the defense would be available. The prosecution bears the burden of proving that the defendant's intoxication was voluntary, even where the degree of intoxication is not so severe as to provide a basis for inferring lack of criminal responsibility. The legislature did not intend to criminalize driving after being slipped an intoxicating drug.

Unless a person knew or should have known of the effects of the medication or its exacerbating effects on consumed alcohol, they may not be held responsible for the result. It is prejudicial error to preclude a defendant from introducing evidence that he did not know of possible effects of medication on his driving ability, that he did not receive warnings as to its use, and that he had no reason to anticipate effects which the drug induced. In such a case the defendant is entitled to an instruction that he not be convicted unless he knew or had reason to know of the possible effects of a drug his doctor gave him on his driving abilities.

Practice Note

The side effects of medications are listed in the Physician's Desk Reference and are admissible as part of the text. Expert testimony may also be utilized to the same end at considerable expense but would be subject to cross examination. The court may not allow both pages from the Physician's Desk Reference and expert testimony on the same subject.

(Taken from Drunk Driving Defense in Massachusetts, pg. 42-44)