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Commonwealth v. Neal
Citations: 464 N.E.2d 1356; 392 Mass. 1; 1984 Mass. LEXIS 1499
Court: Massachusetts Supreme Judicial Court; May 21, 1984; Massachusetts; State Supreme Court
The Supreme Judicial Court of Massachusetts affirmed the conviction of Daniel N. Neal for operating a motor vehicle under the influence of alcohol. Neal challenged the admissibility of his breathalyzer test results on several grounds: the Commonwealth's failure to preserve breath samples for retesting, the nonpreservation of ampules used during the test, the potential for radio frequency interference with the breathalyzer used, and the assertion that conducting only one breath test was scientifically inadequate. The court held that the lack of preserved breath samples and ampules did not necessitate the exclusion of the breathalyzer results. It determined that the Commonwealth provided adequate evidence that the breathalyzer was not prone to radio frequency interference. Additionally, while a second breath test was deemed advisable, it was not legally required. The facts outlined included Neal's arrest following a collision where he exhibited signs of intoxication, admitted to unregistered and uninsured vehicle status, and attempted to evade law enforcement. Field sobriety tests indicated impairment, and a subsequent breathalyzer test revealed a blood alcohol content of .14. Neal was informed of his right to an independent test but chose not to pursue it. The defendant was charged with operating under the influence of intoxicating liquor and was found guilty in a District Court, resulting in a $500 fine, a suspended six-month sentence, and two years of probation. Following the conviction, the defendant appealed and filed motions to suppress the breathalyzer results, arguing unreliability due to the Commonwealth's failure to preserve breath samples, conduct multiple breathalyzer tests, and provide exculpatory evidence. After a three-day hearing, the motions were denied on March 28, 1983. The defendant then waived a jury trial and consented to the admission of a police report as evidence, leading to a repeat guilty finding and the same sentence. The defendant subsequently appealed to the Appeals Court, which granted direct appellate review. The excerpt further details the operation of the Model 900A Breathalyzer used for the blood alcohol content measurement. Experts Dr. Harvey Cohen and Dr. James Feldman explained the process, which involves a breath sample being passed through a potassium dichromate-sulfuric acid solution. The breathalyzer includes sealed reference and test ampules, with photoelectric cells that measure light intensity changes due to the interaction of breath alcohol with the solution. The device uses a null meter to calibrate the readings, resulting in a blood alcohol content reading that is recorded on a test card after the examination. The officer administering the defendant's breathalyzer test adhered to a police protocol, observing the defendant for twenty minutes prior to the test to ensure no ingestion of food or drink. During this observation, the officer checked the reference and test ampules for proper solution volume and prepared the instrument by flushing the breath chamber and zeroing it before conducting the examination. After obtaining the test result, the officer conducted a simulator test with a .15 percent alcohol solution, which confirmed the breathalyzer's functionality with a matching reading of .15. The defendant asserted a violation of due process due to the Commonwealth's failure to preserve breath samples for independent testing and its routine destruction of used ampules. The defense's expert, Dr. Cohen, argued that preserved samples could reveal inaccuracies in the breathalyzer results, and the lack of such evidence deprived the defendant of a fair trial, warranting dismissal of the charge. The judge denied this motion, acknowledging that while preservation could assist the defense, it is not constitutionally mandated. The judge's review of the Commonwealth's duty to retain breath samples highlighted that some appellate courts have found technological feasibility and reasonable costs associated with preservation. The defendant cited Brady v. Maryland and related cases to argue for a constitutional obligation to gather evidence beneficial to the defense, but neither the U.S. Supreme Court nor the court in question has extended this duty beyond existing evidence already in the prosecution's control. Due process requires the preservation of breath samples in driving under the influence (DUI) cases to allow defendants to conduct independent testing, as established in Garcia v. District Court, 21st Judicial Dist. The Colorado Supreme Court argued that failure to preserve such evidence equates to evidence suppression. However, in this case, the Commonwealth contends that the availability of a statutory right to an independent blood alcohol content test sufficiently meets due process requirements, allowing the defendant to challenge the breathalyzer results. The court notes that other jurisdictions agree that due process does not mandate the state to preserve breath samples when defendants can obtain independent tests. The defendant argues that the Commonwealth must prove he had practical access to the independent test, but the court finds this unpersuasive as he declined the additional test without evidence of practical obstacles influencing his choice. The court also dismisses the notion that the defendant unknowingly waived his right to an independent test due to a lack of information about breathalyzer reliability, asserting that informing him of his rights suffices as notice of potential inaccuracies. Ultimately, the court concludes that when a DUI suspect is informed of their right to an independent test and either takes or declines it, the collection of breath samples by law enforcement is not a constitutional requirement for the admissibility of breathalyzer results. The retention of ampules used in breathalyzer tests is critical to a defendant's right to due process, separate from the prosecution's obligation to provide exculpatory evidence. The destruction of these ampules raises questions about whether this action deprived the defendant of material evidence. An expert testified that defects in the ampules could compromise breathalyzer accuracy, and preserved ampules could be analyzed to confirm test validity. Courts across various jurisdictions have conflicting views on whether the ampules are material or exculpatory; some have ruled that they only provide potential impeachment evidence and thus do not meet the standards set by Brady v. Maryland. However, evidence that could undermine a key witness’s credibility is considered exculpatory. If the ampules could have been used to challenge the breathalyzer result, their destruction may violate the defendant's due process rights, regardless of police intent. Since the ampules are no longer available for examination, the defendant must only show a reasonable possibility that access to them would have yielded favorable evidence, rather than definitively proving exculpatory nature. Retesting of Breathalyzer ampules is deemed inadmissible as scientific evidence because no valid procedure for reexamination exists that has gained general acceptance within the scientific community. Relevant case law shows that ampule retesting has not achieved such acceptance, and the judge was not obligated to accept the defendant's expert testimony regarding retest accuracy. Consequently, the requirement for police to preserve ampules for retesting by the defense is rejected. Conversely, a physical examination of the ampules does not involve questionable scientific procedures, as it can identify potential inaccuracies related to the ampule's construction. The retention method proposed by the defendant's expert, involving covered plastic containers, is noted, but the simulator test conducted with the same ampules used in the breath test undermines the claim that defects in the ampule could have affected test accuracy. As a result, the destruction of the ampules is not seen as depriving the defendant of evidence related to the accuracy of his test results. The court concludes that the failure to preserve the ampules does not violate the defendant's constitutional rights. Moreover, a motion to suppress the Breathalyzer results based on alleged susceptibility to radio frequency interference (RFI) was considered. Tests indicated that the Model 900A could potentially yield inaccurate readings due to RFI under certain conditions. A customer advisory issued by Smith, Wesson acknowledged this risk and outlined procedures to determine if specific units were affected, indicating an awareness of the issue but not necessarily rendering the device unreliable in all circumstances. The procedures outline two testing programs for measuring susceptibility to radio frequency interference (RFI): one for 'background' RFI from uncontrolled sources and another for 'base-station' or active RFI from police-affiliated sources. If the testing yields acceptable simulator solution readings, RFI is deemed not problematic at the test location under current conditions. Subsequent testing for RFI susceptibility of the breathalyzer is not needed unless there are changes in several specified factors, including radio frequencies, antenna positioning, unit repairs, or the background RFI environment. On January 26, 1983, the Barnstable police department received an advisory from Smith, Wesson. The following day, a certified breathalyzer operator tested the Model 900A for both background RFI and potential interference from police transmitters, recording no significant deviations. However, the operator did not test for RFI from three infrequently used channels. Despite performing around 100 simulator tests in his duties, he noted an inaccurate reading on one occasion. Earlier testing was conducted by the owner of the Law Enforcement Maintenance Company on May 6 and October 15, 1982, who calibrated and certified the unit as compliant with federal standards, following a protocol similar to Smith, Wesson’s but not testing all frequencies or for RFI from cruiser transmitters and walkie-talkies. A defense expert expressed skepticism regarding the sufficiency of the Smith, Wesson testing protocol, asserting that it does not guarantee a breathalyzer's immunity to RFI. He highlighted that RFI from different frequencies or power levels could still lead to inaccurate results at other times, and suggested that reliability could be enhanced by conducting two separate breath tests for consistency in results. The Model 900A Breathalyzer can be made immune to radio frequency interference (RFI) through a procedure known as the 'Minnesota modification' or 'hardening', which involves adding RFI filter components and sealing openings at a cost under $100. The defendant does not contest the general acceptance of the Model 900A for scientific evidence admissibility in the Commonwealth. However, the defendant argues that recent findings of the Model 900A's vulnerability to RFI necessitate reevaluation of the admissibility of its test results. Current literature and judicial decisions on RFI's impact on the Model 900A's accuracy are limited. Test results from Smith, Wesson demonstrate the device's susceptibility to RFI at various conditions, while the defendant's expert claims no single result from an unhardened unit is reliable. Despite this, the expert acknowledges that results from the Model 900A are generally reliable. The court finds that the existing evidence on RFI's potential effect necessitates that the admissibility of breath test results depend on proving the specific unit's accuracy at the time of testing. The court rejects the Commonwealth's proposal to leave the reliability determination to the trial fact-finder, emphasizing the need for judicial assessment to prevent expert disputes from overshadowing the trial's primary objective. Consequently, in trials involving Model 900A test results post-opinion, and in ongoing cases with preserved objections regarding RFI susceptibility, the Commonwealth must establish that the instrument was not significantly affected by RFI to ensure the accuracy of the results. A breathalyzer used in examinations must be 'hardened' in accordance with procedures approved by Smith, Wesson to satisfy foundational requirements. A subsequent breath test, if consistent with the initial test, can also fulfill this requirement. The Commonwealth must demonstrate adherence to RFI testing procedures outlined by Smith, Wesson to establish non-susceptibility to RFI at the time of the result. The judge denied the defendant's motion to suppress, confirming the breathalyzer operator complied with Smith, Wesson's directives in testing RFI susceptibility, establishing that the breathalyzer was not susceptible to RFI. While admissible evidence regarding RFI susceptibility could impeach the breathalyzer result, it did not necessitate exclusion of the result by law. The judge's findings indicated compliance with the advisory and the absence of RFI effects at common police frequencies, though it would be preferable to test all broadcasting frequencies. The judge justifiably relied on independent RFI testing conducted during calibration, despite repairs and calibrations occurring after the defendant's examination. The likelihood of RFI affecting the test result was considered negligible due to the absence of nearby police transmitters during the test. Although the Commonwealth did not definitively prove that RFI did not influence the test result, the standard for scientific evidence does not require absolute certainty. The evidence presented sufficiently supported the judge's decision that exclusion of the breathalyzer result was not legally necessary. The defendant argued for a two-test system to compare blood alcohol content readings, and while the Commonwealth acknowledged that a two-test approach is preferable, current law does not mandate such a requirement for breathalyzer result admissibility. Routine simulator tests following breath tests and the statutory right to an independent test serve as safeguards against wrongful DUI convictions based on inaccurate results. Unlike other jurisdictions where breathalyzer results have conclusive effect, in this case, the result is treated merely as evidence of intoxication, to be weighed alongside other evidence. The court affirmed the conviction, concluding that the defendant was not denied a fair trial. The defendant's prior conviction for failing to drive in marked lanes is not contested here. A breathalyzer reading of .10 or higher creates a permissive presumption of intoxication under Massachusetts law. The Model 900A Breathalyzer, commonly used in approximately half of Massachusetts cities, is one of several breath analysis instruments available. The court refrains from commenting on the validity of results from other breathalyzer models when addressing the defendant's challenges to the Model 900A. The defendant raised concerns about the preservation of breath samples and the right to an independent breathalyzer test, which only arises if the police introduce results from a test administered with the defendant's consent. The argument suggesting that potential intoxication could invalidate the waiver of the independent test was dismissed. The Commonwealth contended that the defendant's failure to specifically request the production of ampules before filing a motion to dismiss should invoke a higher standard of materiality, asserting that evidence obtained from the ampules would not create reasonable doubt given the strength of the remaining evidence against the defendant. The court noted that a specific request for the ampules would have been ineffective as they were routinely discarded after the breath test. The defendant has failed to demonstrate a reasonable possibility that the ampules, if available, would provide exculpatory evidence, rendering the applicable standard of materiality unnecessary to determine. Simulator tests indicating blood alcohol content (BAC) readings between .142 to .157 are within acceptable deviations from the expected .15 reading. The Commonwealth is required to disclose any Brady material, including information about potentially defective test lots or breathalyzer accuracy impairments, such as radio frequency interference (RFI). RFI can affect the functioning of electronic devices, including breathalyzers, potentially altering BAC readings. Testing on twenty Model 900A units revealed varying distances at which RFI no longer causes meter deflection, with immunity radii differing by frequency. Background sources of RFI include radio and television stations, military installations, airports, and emergency vehicles. Smith & Wesson's protocols require specific conditions for simulator testing to mitigate RFI effects. Relevant Massachusetts law stipulates that such evidence is admissible in intoxication determinations. The New Jersey Supreme Court has ruled that Model 900A results can be admitted if foundational requirements are met, with ongoing litigation regarding their reliability occurring nationwide. Future reconsideration of this issue is possible if the scientific community no longer accepts the results of breath examinations. The judge determined that there was insufficient evidence to suggest that the breathalyzer test administered to the defendant was affected by radio frequency interference (RFI). It was clarified that the burden of proof lies with the Commonwealth to demonstrate the admissibility of the breathalyzer results, especially when evidence is introduced that questions the reliability of the instrument. The Commonwealth was found to have met this burden in the case at hand. The breathalyzer unit was located in a small, insulated room, unlike the open field used in previous testing by Smith & Wesson, leading to conflicting testimonies regarding the unit's susceptibility to RFI. Evidence indicated that the background RFI levels could fluctuate, rendering the Smith & Wesson testing protocol inadequate for proving that the breathalyzer was unaffected by RFI at the time of testing. The judge was not required to accept all testimonies presented. Although it would have been prudent for the Commonwealth to provide supporting testimony to validate its testing protocol, the defendant's experts conceded the scientific method of the breathalyzer was sound and acknowledged that most results from such devices are generally reliable.