Judge deals temporary blow to Breathalyzer tests
A Massachusetts district court judge has ruled that most Breathalyzer test results will no longer be admissible in court until the problem-plagued Office of Alcohol Testing can earn its national accreditation.
Judge Robert Brennan said the department must undergo serious reforms, including training for staff and instituting rules for complying with discovery requests. The courts will only allow the evidence to be admissible once the accreditation is approved, which the department said they are hoping to achieve by August.
“If you’re operating a lab you need to be scientifically reliable,” said Thomas Workman, the technical expert working with the defense. “Breath is often the most important piece of evidence when a jury is deliberating and if it’s not reliable it’s a big deal. The process will never be perfect but it needs to be fair.”
The decision came after Brennan found the OAT failed to release evidence to lawyers representing drunken driving defendants that showed around 400 Breathalyzer results were flawed. Prosecutors tossed evidence from thousands of drunken driving cases as a result. Despite the investigation and overhaul of the OAT, Brennan ruled the efforts were insufficient “to provide the level of transparency necessary to remedy the harm to the criminal justice system.”
“It’s dismissing evidence that was carefully collected and there is a lot of work that goes into those cases,” said Mothers Against Drunk Driving Massachusetts program director Mary Kate DePamphilis. “Law enforcement is trained to observe the cognitive signs but they need every possible tool, including Breathalyzers, to get those charges.”
Joseph Bernard, the lawyer who fought against the tests, said there is no one but the department to blame if cases are impacted.
“Shame on the state police and OAT for not doing their job,” Bernard said. “It’s disingenuous to point the finger at the defense because it’s their fault, their responsibility and they didn’t fulfill their responsibility. They’re paid millions of dollars and they dropped the ball.”
Cops however aren’t worried about the decision. Massachusetts State Police spokesman David Procopio said by the time a Breathalyzer is used the cops have determined through sight and smell if alcohol is present.
“We’re still taking drunk drivers off the roads every day,” Procopio said. “The Breathalyzer is one of several tools and techniques that police officers use to determine impaired operation. The Breathalyzer, when administered, is the last step in that process and many times by that point there is already sufficient evidence of impairment.”
Exceptions include DUI cases in which there was death or serious injury and in cases where the defendant is facing a fifth or subsequent DUI offense.