Massachusetts Breath Test Double Jeopardy Dui Lawyers Attorney

Massachusetts Breath Test Double Jeopardy DUI Lawyers Attorney

by

Atchuthan Sriskandarajah

JOSEPH P. GIBSON vs. COMMONWEALTH.

SUPREME JUDICIAL COURT OF MASSACHUSETTS

April 8, 1997, Decided

Facts:

The petitioner, who had sought relief from an interlocutory ruling in the Superior Court denying a motion to dismiss, now appeals to the full court under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from a single justice’s denial of relief under G. L. c. 211, 3.The petitioner, in an effort to establish, as rule 2:21 requires, “why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means,” argues that he “is being forced to defend a case whose prosecution is barred much like a double jeopardy case.” He sought to dismiss that portion of the pending charges alleging he had been driving while under the influence of alcohol, claiming that under G. L. c. 90, 24 (1) (e), the results of his

breathalyzer test

mandated his immediate release, and any prosecution thereunder halted.

Issue:

Whether the prosecution in this case is barred much like a double jeopardy case?

Discussion:

This court held that that Gibson’s breath test results (from tests approximately three hours after the alleged offense) fell within the range of “the statutory permissible inference that he was not under the influence of alcohol,” but concluded that that inference did not apply because the evidence was not obtained “at the time of the alleged offense,” as specified in G. L. c. 90, 24 (1) (e). Moreover, the judge concluded there was probable cause to arrest Gibson (based at least on an odor of alcohol on Gibson’s breath, the presence of beer cans in his truck, and the condition of the vehicle).The petitioner’s argument that this element of his prosecution is barred; that it could influence a fact finder’s view of a second indictment charging reckless driving that caused the death of another person; and that it cannot be cured in the regular course of appeal does not demonstrate that the single justice committed an abuse of discretion or a clear error of law.

Conclusion:

This court hence affirmed the judgment of the single justice’s denying relief under G. L. c. 211, 3 to the petitioner.

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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