Mass. Judge rules Breath­a­lyzer tests out un­til ac­cu­racy as­sured

Pawtucket Times - - RELIGION/OBITUARIES - By DAVID LIN­TON Sun Chron­i­cle via AP

A dis­trict court judge has ruled that Breath­a­lyzer test re­sults, with few ex­cep­tions, can­not be used as ev­i­dence in court un­til the state Of­fice of Al­co­hol Test­ing (OAT) can show the re­sults are ac­cu­rate.

Judge Robert Bren­nan of Salem Dis­trict Court or­dered the of­fice to un­dergo ma­jor reforms, in­clud­ing ob­tain­ing national ac­cred­i­ta­tion, pro­vid­ing ad­di­tional train­ing for staff and in­sti­tut­ing rules for com­ply­ing with dis­cov­ery re­quests sim­i­lar to those fol­lowed by the state po­lice’s crime man­age­ment unit.

The decision Wed­nes­day came as a re­sult of a class ac­tion suit and years of lit­i­ga­tion after Bren­nan found the of­fice failed to re­lease ev­i­dence to lawyers rep­re­sent­ing drunken driv­ing de­fen­dants that showed about 400 Breath­a­lyzer re­sults were flawed.

“In order to rem­edy the prej­u­dice caused by OAT’s mis­con­duct against the con­sol­i­dated de­fen­dants and the re­sult­ing dam­age to the crim- inal jus­tice sys­tem, OAT must first demon­strate that its cur­rent method­ol­ogy will pro­duce sci­en­tif­i­cally re­li­able BAC re­sults,” the judge wrote in his 28-page decision.

Pros­e­cu­tors have not used breath-test re­sults in court since Au­gust 2017 as a re­sult of the law­suit and dis­clo­sures in the case.

In Oc­to­ber 2017, the head of the of­fice was fired after a re­port issued by the state Ex­ec­u­tive Of­fice of Safety and Se­cu­rity found it in­ten­tion­ally with­held ex­cul­pa­tory ev­i­dence, dis­re­garded court orders and other er­rors.

Pros­e­cu­tors have gone for­ward on cases us­ing po­lice tes­ti­mony about their ob­ser­va­tions dur­ing drunken driv­ing ar­rests, such as er­ratic driv­ing, the smell of al­co­hol, a de­fen­dant’s speech and field so­bri­ety tests.

Breath tests can be used in cases where de­fen­dants are charged with motor vehicle homi­cide while driv­ing un­der the in­flu­ence of al­co­hol, driv­ing un­der the in­flu­ence and caus­ing an ac­ci­dent with se­ri­ous bod­ily in­jury, or fifth or subse- quent drunken driv­ing.

“It will be some time be­fore the breath tests will be used be­cause they have to meet cer­tain cri­te­ria,” At­tle­boro lawyer Michael DelSig­nore said of the Of­fice of Al­co­hol Test­ing.

He said the rul­ing means the of­fice will have to un­dergo pe­ri­odic ran­dom au­dits which will help en­sure that it op­er­ates “like a sci­en­tific lab,” much like the state po­lice lab­o­ra­tory.

“In the long run,” DelSig­nore said, “the re­sults will pre­sum­ably be more re­li­able.”

The of­fice plans to ap­ply for national ac­cred­i­ta­tion by this Au­gust.

“It is im­por­tant to note that the court found that the in­stru­ments are sci­en­tif­i­cally sound and re­li­able. But the Of­fice of Al­co­hol Test­ing had to ob­tain ac­cred­i­ta­tion and im­prove its dis­cov­ery prac­tices. We are hope­ful that the nec­es­sary ac­cred­i­ta­tion, out­lined by the court, are ac­quired as soon as pos­si­ble so that law en­force­ment can make full use of this valu­able tool,” David Traub, a spokesman for the Nor­folk County dis­trict at­tor­ney’s of­fice, said in a state­ment.

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