Mass. Judge rules Breathalyzer tests out until accuracy assured
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.