By refusing to take the legally admissible breath test back at APD headquarters Frank J Dellaglio, age 32, will be absent from the driver seat for six months . All evidence indicates he was impaired -- especially the "Portable" Breath Test he took in the field showing him well over the .08 limit.
But in Massachusetts the Portable Breath Test cannot be used as evidence in court; and a refusal to take the legally admissible (non "portable") breath test back at the station also cannot be used in court, although that automatically brings a six-month license suspension.
But if he should win his case in front of a judge or jury -- and with the PBT results and refusal to take the real breath test both inadmissible -- that likelihood is a tad higher, then his license is immediately reinstated.
Massachusetts needs to get serious about prosecuting drunk driving laws by allowing the state to use the results of a PBT (just tell the judge it's kind of like Twitter -- not 100% infallible) and also to allow the refusal to take the fancier chemical breath test back at the station be admissible as evidence.
3 comments:
What an ass-backwards state. If there is a law to be made, this state will screw it up. Why bother giving breathalyzers if they mean nothing. Just like the texting laws. OK so kids can't text while driving but adults can? And driving your car and using a cell phone are not a problem. Nearly got in 10 accidents this year alone because of idiots on their cell phone. Oh, and don't wear a seatbelt because unless you commit another crime a cop can't cite you. Honestly, the liberal brain is fucking dangerous in Assachusetts.
The portable breathalyzers should not be used at all. They are not accurate, and that is why they are not admissible. The problem is that they tip off the drunk driver that they actually are over the limit, so then they refuse the real test back at the station. We know drunks have poor judgement, so if they had not taken the inadmissible test and failed it, they might be brave enough to try the real one.
As far as refusal and 6-months loss, that is not necessarily true. If the case gets rushed to trial (which could be 3 months) and the perp is found not-guilty, then they can have their license immediately reinstated.
Anon 0703: I am sorry sir/maam but you could not be more WRONG on all points.
1) The PBTs are accurate devices that require constant upkeep, documentation and certification. The reason they are not admissible is due to technology used, number of samples taken, environment conditions and inability to print out results on a sequentially numbered form to name but a few. I suggest you read c90s24k and the 501 CMR 2.01 et seq. Cellular v infrared. Breath sample cooling/warming due to ambient air temperatures. Observation period. The laws are slanted heavily in favor of the defendant for a reason on this point.
2) There is volumes of research that proves your assumption false: statistically more defendants who take a PBT roadside will take an evidentiary test back at the station post arrest. Not even close.
3) While the trial judge may attempt to reinstate a license, that authority lies with the registrar. The judge may only make a recommendation. The suspension is for the violation of the implied consent law and has nothing to do with the case in chief. It is the discretion of the registrar weather or not to reinstate the license. The judge can scream till he is red in the face but if the RMV says "No" then you are SOL. Flip of the coin on that but no guarantee.
Please do not guess, assume, believe in water cooler banter or that the "internet" has the correct answers. Read the MGL.
Post a Comment