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SJC rejects challenge to breathalyzer test certification

Print | Comments () Posted by Martin Finucane May 24, 2011 05:13 PM

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By Martin Finucane, Globe Staff

The state’s highest court has ruled that prosecutors in drunken driving cases don’t have to call a technician to testify that the breathalyzer machine used by police worked properly.

The Supreme Judicial Court today rejected claims by a woman convicted of drunken driving in Greenfield that the annual certification of the machine and accompanying records constituted “testimony” from a witness and thus required that the defense be given a chance to cross-examine the person who had prepared them. The Sixth Amendment to the US Constitution says people have a right to cross-examine the witnesses against them.

The Massachusetts court said instead that the records were “business records” primarily intended to “to guarantee, internally, as a matter of course, and when necessary, in court, the accuracy and standardization of all breathalyzer testing across the various police departments of the Commonwealth.”

"I am very pleased that the SJC accepted our argument that requiring breathalyzer technicians to testify in every OUI trial is wholly unnecessary," Northwestern District Attorney David E. Sullivan said in a statement.

The defendant’s attorneys had relied on the Melendez-Diaz US Supreme Court case, in which justices ruled that certificates of drug analysis constituted testimony and drug lab experts should be called to testify.

But the state court noted that the Melendez-Diaz ruling itself noted that “documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”

“We conclude that the … records are nontestimonial, and their admission without the live testimony of the technician who prepared them did not violate the confrontation clause of the Sixth Amendment,” the court wrote. The opinion in Commonwealth v. Zoanne Zeininger was written by Justice Robert Cordy.

Zeininger's attorney, Patricia A. DeJuneas, didn't immediately return a message seeking comment.