Ruling may open the door for impairment law

A Massachusetts judge has ordered — again — that Breathalyzer results be excluded as evidence against drivers charged with operating under the influence of alcohol, pending a review of the tests and the state lab.

In a ruling Monday, District Court Judge Robert Brennan found concerns raised about the accuracy of the tests and their management by the Massachusetts Office of Alcohol Testing significant enough to pause their use in court as evidence.

Joseph Bernard, a defense lawyer and longtime critic of Breathalyzers’ reliability, said that software malfunctions had produced unusable test results, which the testing office had failed to notify lawyers and defendants about.

This judge and the defense lawyer have been down this road before.

This pause on using Breathalyzer tests in evidence is just the most recent development in a years-long challenge of their accuracy.

Back in January 2019, Judge Brennan instructed that no Breathalyzer tests administered in Massachusetts could be used in court until the state’s Office of Alcohol Testing undergoes major reforms.

That ruling came after years of litigation over the validity of the Breathalyzer test used in Massachusetts. During the course of that legal action, it was discovered that the Office of Alcohol Testing intentionally withheld important evidence from defense lawyers.

Despite a state investigation of the office and the promise of reforms, Brennan wrote at the time that none of the steps taken so far is “sufficient to provide the level of transparency necessary to remedy the harm to the criminal justice system.”

Bernard, of Springfield, and Thomas Workman, of Taunton, representing drunken-driving defendants, had a history of challenging the accuracy of the Alcotest 9150 developed by Draeger Safety Diagnostics.

In support of this most recent ruling, Bernard claimed breath tests were also given by some people not certified to administer them.

These repeated examples of Breathalyzer test flaws have rendered it virtually useless as a prosecution tool.

Masslive cited a WBUR report in June that indicated that most district attorneys have stopped using evidence from Breathalyzers in court.

While they’re but one of law enforcement’s tools, Breathalyzers’ objective results – free of subjective input – should be an unassailable determinant of a person’s alcohol impairment.

Without that device, police must rely on their professionally honed observation techniques to reach a conclusion on inebriation.

This ruling could actually boost Gov. Charlie Baker’s quest to finally get a marijuana-impairment law on the books.

The governor, frustrated by the Legislature’s inaction more than five years after the legalization of recreational pot, is refiling a bill “equalizing alcohol and marijuana” that would make it easier to prosecute people who drive under the influence.

The bill’s named after Thomas Clardy, a state trooper killed while conducting a traffic stop on the Mass Pike in Charlton in 2016 when a man who had THC in his system crashed into his cruiser.

A judge found that driver guilty of involuntary manslaughter during a 2019 bench trial, sentencing him to up to seven years in prison, but acquitted him of driving impaired on marijuana at the time of the crash, because prosecutors failed to prove he was too impaired to drive safely.

“Equalizing alcohol and marijuana,” as Baker’s bill asserts, has proven to be a legal roadblock previously.

Critics have shown that marijuana’s bodily presence can last long after its actual use.

Plus, since there’s no device that can accurately indicative a person’s pot impairment, it comes down to a law enforcement judgment call.

But with Breathalyzers now relegated to the breakdown lane, it could help put alcohol and marijuana impairment on equal footing.

And finally pave the way for an Oui-marijuana offense.