Commonwealth v. Daigle: Breath Test Evidence Not Admissible Where Prosecutor Does Not Meet Foundational Requirements

On January 25, 2021, the Massachusetts Court of Appeals released its decision in Commonwealth v. Daigle, where the Court reiterated the importance of statutory and regulatory foundational requirements that must be met in order for evidence of a breath test or attempted breath test to be admitted by the prosecution at trial. The Court held that these significant requirements are still mandatory even if a defendant who submitted to a breath test and the breathalyzer was unable to obtain a reading.

In November of 2017, Amy Daigle was pulled over by Officer Jenkins after he had observed her failing to stop at a stop sign. After an encounter with Daigle on the side of the road, Officer Jenkins made the arrest, forming the opinion that she had operated while under the influence and proceeded to bring her to the police station. During the arrest, Daigle informed Officer Jenkins that she suffered from Anxiety and PTSD and as a result was suffering from a dry mouth. Officer Jenkins transported Daigle to the police station where he requested that she submit to a breath test to determine her Blood Alcohol Content (BAC). Daigle consented to take a breath test. Officer Jenkins administered the test and was the only officer who observed her at this time. No evidence was offered at trial to show that Officer Jenkins was a qualified Breath Test Operator, nor was any evidence presented on the proper workings of the breathalyzer, its proper maintenance or that the breathalyzer itself was a certified device. Daigle attempted to provide a sample three separate times, but the breath sample did not register on the breathalyzer. Officer Jenkins interpreted this attempt as a refusal to submit to the breath test.

At trial, the Commonwealth attempted to introduce Daigle’s breath test attempt and the lack of a breath test result. The Commonwealth argued that her attempt and the lack of a breath test result was evidence that Daigle was unable to provide a sample due to her intoxication. The Commonwealth further argued the breath test attempt should not be excluded from evidence as a refusal since she had consented to take the test and was just unable to do so. Daigle raised the defense that she was unable to produce a proper breath sample not due to intoxication, but because of her PTSD and anxiety. Also at trial, Ultimately, the trial judge allowed the so called breath test attempt and “result ”to come into evidence. The jury returned a guilty verdict on the charge of operating under the influence. Daigle appealed her conviction, challenging the admission of her breath test attempt and “result” into evidence, and the Court of Appeals agreed with her that this evidence should not have been used to prosecute her.

Foundational Requirements for Admission of Breath Test

The Appeals Court held that the Commonwealth had failed to meet a single aspect of the foundational requirements to admit breath test evidence. “An insufficient sample reading is a breath test result,” and therefore the statutory and regulatory requirements to admit a breath test result must be met before the result can be introduced into evidence. M.G.L. Ch. 90 §24K and 501 CMR 2.00 both lay out the requirements for the admission of a breath test to be used against a defendant at trial. “The evidence offered in this case failed to meet the statutory and regulatory requirements in at least two respects -- that the person administering the test was certified, and that the methodology used was in fact reliable.”

One of these requirements, that the person administering the test was certified, requires the prosecutor to show that the officer who administers the breath test was a qualified as a “Breath Test Operator” (BTO). A BTO is an officer who undergoes additional training in how to properly administer a Breath Test and how the machine functions. At the culmination of their training, the officer receives a certification and a BTO number that must be used when a Breath Test is administered. As trial, however, the prosecutor failed to present any evidence that Officer Jenkins was a qualified BTO.

The other requirement, that the methodology used to obtain the breath test result be reliable, requires the prosecutor to show that the breathalyzer was in proper working order, that it had been regularly maintained, and that it had been certified and calibrated by the Massachusetts State Police Crime Laboratory. However, the prosecutor did not present any such evidence at trial. In light of the Commonwealth’s failure to establish the requisite foundation, the Appeals Court determined that the breath test was not properly introduced and the jury should never have considered the result.

Consent and the Breath Test

When an individual refuses to submit to a Breath Test, it is considered a refusal and therefore not admissible as evidence to be used against them at trial. Commonwealth v. Lopes, 459 Mass. 165, 170 (2011); Opinion of the Justices, 412 Mass. 1201, 1211 (1992). However, as the Appeals Court discussed here, when an individual consents to take a breath test but is unable to provide an adequate sample, it does not turn the attempt into refusal evidence that must be excluded from trial. Because the individual did in fact consent, and chose to potentially provide evidence against themselves, there is no longer Fourth Amendment protection. Under the proper circumstances, being unable to provide an adequate breath test sample could, as the Commonwealth attempted here, be used as evidence that the defendant is too impaired to take the test or show a consciousness of guilt. For this to happen, all the foundational requirements must still be met. If the foundational requirements are not, the Commonwealth is unable to introduce any evidence relating to the breath test. Because the prosecutor failed to meet the foundational requirements, the Appeals Court held that the breath test evidence should not have been used to prosecute Daigle, even though she consented to the breath test.

If you are facing the charge of OUI and attempting to submit to a breath test, it is important for you to talk with an experienced attorney to explore all of your possible defenses and legal challenges. If you have any questions about an operating under the influence charge, please do not hesitate to contact the Law Offices of Joseph D. Bernard for a free consultation today.