Whenever someone is pulled over and the police officer makes the fateful decision to arrest the person for operating under the influence, the police will offer the opportunity for a breathalyzer test. This will oftentimes seem like the only option, as the form that the police read the breathalyzer rights from states that you could lose your license to operate a motor vehicle from 6 months to life for a refusal.
With this in mind, if the decision is made to take a breathalyzer test, there are certain procedures that the police must follow in administering such a test. For instance, pursuant to Massachusetts regulations, the breath test operator must observe the person consenting to the test for a period of at least 15 minutes immediately prior to the administration of the test. 501 C.M.R. 2.13 (3). Substantial failure to observe for the 15 minute period of time immediately prior to the test can form the basis of a Motion to Exclude the test results.
Similarly, the time that the person is first observed for purposes of the observation period should be entered as the same time on both the test ticket as well as the rights form that the person taking the test signs off on. If these times are not the same, this may call into question when and at what time the person was actually first observed for the 15 minute observation period.
Finally, the breath testing device as well as the person giving the test must be certified. If the device, or the operator are not certified, than the test is invalid. As a result, if you or someone you know is charged with operating under the influence, and there is a breathalyzer test result, contact an experienced Massachusetts Drunk Driving Lawyer today to go to bat for you.
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