The Massachusetts Appeals Court ruled today Suffolk County prosecutors can't use the results of breath tests that showed an Arlington man was at least 1.5 times over the legal alcohol limit when he allegedly drove his pickup into a Boston Police prisoner wagon in the South End early on April 20, 2012.
Pauric Houragan blew .121 and .143 on two breath tests after the crash on East Berkeley Street. State law requires a new set of tests when the first two initial sets vary by more than 0.02. A lower-court judge ruled that the 0.022 difference in the two results could be rounded down to 0.2 and that therefore the test results were valid evidence against Houragan - along with testimony from a police officer who would testify Houragan was glassy eyed and failed three field sobriety tests after the crash.
The judge's ruling would have been upheld before 2010, when test results only had to be compared to two decimal places, but that year, the state Executive Office of Public Safety modified its Breathalyzer regulations to require that in addition to looking at results to two decimal places, police had to report the results to three decimal places and that "the lower of the two breath sample results shall be truncated to two decimal places."
Going back to high-school math and science lessons on the differences between precision and accuracy, the court ruled this set up an impermissibly ambiguous standard that requires the results in this case be tossed:
Our primary reasoning is literal. The differential in the defendant's test results, .022, is not "within +/- 0.02% blood alcohol content units," as required by [the 2010 regulations]. Nothing in the regulations or record pertaining to testing procedures and comparison of results to determine their validity directly supports truncation of the third decimal place of a differential between breath samples obtained from a breath testing instrument employing a gas calibration standard. Standards which "touch upon criminal acts" demand greater precision than those which "do not define or relate to criminal conduct." ...
Definiteness will assist not only the person subject to a regulation, but also the officials charged with its enforcement. Here, adherence to a plainly termed regulation and to the monitor warning against the validity of the first test sequence as beyond the permitted differential would have led the technician to conduct a second test sequence. In short, a duty of clarity rests upon an agency authoring a regulation defining criminal conduct or defining a standard of proof of that conduct. The present regulations do not satisfy that duty.
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