Massachusetts Driving Influence Breathalyzer Mandatory Calibration Lawyers Attorneys

by

Atchuthan Sriskandarajah

KEVIN A. MORRIS v. COMMONWEALTH

Supreme Judicial Court of Massachusetts, Suffolk

FACTS:

Defendant appealed an order of a Suffolk District Court (Massachusetts), which, under Mass. Gen. Laws ch. 90, 24N (1990), upon the basis of a breathalyzer test, suspended his driver’s license for 90 days for driving while under the influence of

alcohol and speeding

. Defendant alleged that the Commonwealth had not complied with the requirements of the periodic testing program for breathalyzer machines under Mass. Gen. Laws ch. 90, 24K (1990).

ISSUES:

The issue here is whether delegation of authority to do the testing to the police by the by secretary is proper.

DISCUSSION:

Prior to the admission of a breathalyzer result, the

Commonwealth of Massachusetts

must prove the existence of, and compliance with, the requirements of a periodic testing program, in accordance with Mass. Gen. Laws ch. 90, 24K, and regulations promulgated thereunder. The guidelines for the periodic testing program provide, among other things, that the police shall be responsible for testing breathalyzers, and that each mandatory calibration of a breathalyzer prior to its use shall be deemed to be a test of such device. Mass. Regs. Code tit. 501, 2.41 (amended February 13, 1992). Mass. Regs. Code tit. 501, 2.41 (amended February 13, 1992) provides, in part, that: Every calibration standard analysis of a breath testing device, as conducted under 2.56, shall be deemed to be a test of such device. The officer in charge, as defined in 2.54, will change the simulator solution in accordance. The defendant argues that the Secretary has no authority to delegate responsibility for the periodic testing of breathalyzers to the police. A regulation is invalid if it conflicts with the authorizing statute. In this case, however, 2.41 is not in conflict with, but consistent with the enabling statute and the other applicable regulation. In requiring the police to conduct the periodic testing, the amended 501 Code Mass. Regs. 2.41 reasonably satisfies the legislative goal of ensuring the accuracy of the tests. The regulation recognizes that it is simply not possible for OAT representatives personally to conduct the mandated calibration standard analysis on each occasion on which a breathalyzer reading is taken in Massachusetts.

JUDGMENT:

The court affirmed the trial court’s suspension of the driver’s license.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm s unofficial views of the Justices opinions. The original opinions should be consulted for their authoritative content

Atchuthan Sriskandarajah is a Virginia lawyer and owner of the SRIS Law Group. The SRIS Law Group has offices in Virginia, Maryland,

Massachusetts

, New York, North Carolina & California. The firm handles criminal/traffic defense, family law, immigration & bankruptcy cases.

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