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Court rejects challenge to state's drunken-driving law.

Byline: Denise Lavoie

BOSTON - The state's highest court yesterday rejected a challenge to Massachusetts' drunken-driving law that would have required prosecutors to provide expert testimony about a driver's blood-alcohol level when stopped, not when a breath test is administered later.

Two lawyers whose clients had been charged with drunken driving challenged the lack of time restrictions in the law, saying it routinely takes an hour or more for police to bring suspects back to the station to administer blood-alcohol tests after traffic stops.

During that time lapse, they said, blood-alcohol content could either rise or decline, leading to inaccurate test results being used by prosecutors during trial. The defense lawyers said prosecutors should be required to provide experts who can testify on what the suspect's blood-alcohol level was when the driver last operated a vehicle, not when the breath test was given.

The lawyers challenged a 2003 law that toughened the state's drunken driving law by considering a blood alcohol level of .08 percent or higher on a breath test automatic proof of alcohol impairment. Under the old law, registering a level of .08 percent was considered "a permissible inference" that a driver was drunk, but not automatic proof.

In both cases, lower court judges ruled that without providing an expert witness who could testify to what the blood-alcohol level was at the time of the traffic stop, state prosecutors could not introduce the breath test results.

Prosecutors appealed the rulings in both cases.

The Supreme Judicial Court reversed the lower court decisions, finding that expert testimony is not required as long as the breath test is conducted within a "reasonable" period of time after the driver last drove

the vehicle. That could be up to three hours, the court said citing laws in other states, but judges could use their discretion to determine whether the circumstances in a particular case call for a shorter or longer time limit.

The SJC found that the state Legislature, when it amended the law in 2003, intended to strengthen the protections given to the public from drunken drivers.

"The position proposed by the defendant and accepted by the judge, that expert testimony ... must now be offered as a prerequisite to the admission of breathalyzer test results, imposes new and significant burdens on the Commonwealth," the court said.

The court also noted that prosecutors, in many cases, would not be able to get information needed for an expert to accurately calculate blood alcohol level before a breath test was taken because the defendant has the constitutional right to remain silent about when and in what amounts he or she consumed alcohol before driving.

Assistant District Attorney Judith Ellen Pietras, who argued the appeal before the SJC, said it would be too expensive to have expert testimony in all the state's drunken driving cases.

"It would certainly increase the length of every trial because now you're going to be introducing expert testimony that would ultimately become quite complicated, and it would still come down to the bottom line that the actual factual information available to the expert would be somewhat limited," she said.

Stephen Monsein, one of the lawyers who argued the case before the SJC, said allowing the breath test results to be introduced to the jury without expert testimony was "highly prejudicial." His client, Anne Colturi, was arrested by state police in April 2005. Her blood alcohol level on a breath test administered more than an hour after she was pulled over was .15 percent.

"The actual introduction of the level of the defendant's blood-alcohol at the time that the test was taken, which might be an hour or more later, is not what the blood-alcohol reading would have been at the time of operation," Monsein said.

He said his client's case and others in the state had been on hold pending the court's ruling and could now go forward.
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Title Annotation:NEW ENGLAND
Publication:Telegram & Gazette (Worcester, MA)
Date:Apr 20, 2007
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