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Breath Test Results Still Being Excluded From Evidence in Massachusetts OUI Cases

February 20, 2018

On August 23, 2017, the Massachusetts District Attorneys Association announced that their prosecutors would suspend the use of alcohol breathalyzer tests in current and future Operating Under the Influence (“OUI”) cases and would refrain from offering the tests into evidence at OUI trials or in plea negotiations.  The reason for this suspension is due to the questionable reliability of the Draeger Alcotest 9510, the specific brand of breathalyzer machines used by the state, which estimates an individual’s blood alcohol content by measuring the blood alcohol content of deep lung air and converting that to a blood estimate. Six months later, this issue is still unresolved.

Questions concerning the reliability of the Alcotest 9510 arose when several attorneys, all of whom represent drunk-driving defendants, filed a motion against the Office of Alcohol Testing (“OAT”) the state agency responsible for ensuring the accuracy of police breathalyzers.  The motion alleged OAT’s failure to turn over documents that could have shown the machines provided flawed and mis-calibrated results hundreds of times over a two-year period.  The attorneys, who represent 750 drunken driving defendants, have said that failure ultimately could affect 58,000 drunken driving cases since 2011, when the state first began using the machines. 

This is not the first time that the reliability of the Alcotest 9510 has been questioned.  In 2015, criminal defense attorneys around the state began to suspect that the Alcotest 9510 used by police departments were producing flawed and inaccurate breath test results. This is because in order to produce reliable results, the Alcotest 9510 must be calibrated at least once each year to ensure that they are producing accurate test results.  Every time a machine is calibrated, the OAT fills out a calibration worksheet.  After reviewing some 39,000 breath tests in drunken driving cases, state officials said fewer than 150 of them were affected by improperly functioning breathalyzer machines

Subsequently, the attorneys suspicious of the breathalyzer test results requested the calibration worksheets from the OAT pertaining to their specific cases.  This request revealed that approximately 430 additional tests performed on the breathalyzers were missing the worksheets that were supposed to accompany the breathalyzer calibration checks.  The attorneys then got a hold of the other missing worksheets, and reportedly 419 of those testing worksheets showed failed attempts at machine calibration.  This failure of the OAT to turn over hundreds of documents demonstrating that the Alcotest 9510 failed to properly calibrate prompted an investigation by the Executive Office of Public Safety and Security in addition to the DA’s suspension of the use of the machines’ tests results.

Although the Executive Office of Public Safety and Security is still in the process of conducting its investigation into the most recent OAT failure, a recent decision issued on February 16, 2017 by District Court Judge Robert A. Brennan regarding the first period of unreliability held that breath test results obtained from the Draeger Alcotest 9510 breathalyzer devices which were last calibrated between June 2011 and September 14, 2014 were presumptively excluded from evidence.  

As a result, district attorneys across the state are either not using breath-test evidence, or seeking continuances of drunken-driving cases until the problem is resolved.  

If you are currently charged with, have plead guilty to, or were convicted of OUI and you took a breath test sometime after June 2011, contact a qualified Massachusetts OUI lawyer to find out how this issue might affect your case.

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