Last month, prosecutors in certain Massachusetts counties suspended the use of Breathalyzer test results in OUI cases. Meanwhile, the State Police reviewed whether the test procedures were reliable. In March, prosecutors were told about concerns with the tests, which caused a number of attorneys to look at older cases to see whether there were Breathalyzer test results with issues.
A spokesperson for the Executive Office of Public Safety and Security stated that when properly maintained, the breath test instrument is one of the most accurate tools available to identify drunk drivers. However, the district attorney for Middlesex County claimed that the issue was the calibration of Breathalyzers, and her staff was temporarily ordered to stop using test results in cases. Similarly, the Cape and Islands district attorney issued an order not to introduce the breath test in any case until further information is obtained. One official initially claimed that 69 out of 6,000 tests administered throughout the state were involved.
At the end of April, the Public Safety Secretary Daniel Bennett announced that only a small number of 39,000 breath analysis tests were flawed because police officers had made mistakes calibrating the machines. He claimed the tests themselves were not malfunctioning.
All Breathalyzer tests need to be calibrated in order for the results to be considered reliable. In Massachusetts, the police must calibrate the tests to operate between 0.074-0.086. This is a more stringent figure than what the manufacturer recommends for its machines. However, when an updated model started to be used in 2011, the state didn’t ask the company to calibrate the machines to the stringent standards of the state. The manufacturer has agreed to provide a software patch for the machines since the problems with the Breathalyzer came up.
The state review found fewer than 150 cases in which the machines were not properly calibrated. Moreover, it found no evidence that the Draeger 9510 breath test machine worked improperly. The Public Safety Secretary stated that he would work with the district attorneys to find 150 people whose prosecutions might be affected by the flaws in calibration.
In spite of these assurances, the Massachusetts Bar Association again called for the AG to establish an independent investigation into the reliability of the tests. The Chief Legal Counsel for the Bar Association wrote a letter asking the attorney general to appoint an investigator who had no ties to law enforcement to ensure that everyone has a fair trial. In his view, the investigation was conducted too quickly, and the Breathalyzer tests shouldn’t be used until there is an independent review.
The Bar Association’s legal counsel noted how quickly the state investigation was conducted. He said that many attorneys would continue raising questions about the breath tests and that they should not be used as evidence until an independent review is conducted and published. The attorney general has issued a statement that it will review the letter and determine what the next steps should be. Meanwhile, district attorneys are trying to identify the individuals whose tests were affected to make sure the errors didn’t unfairly affect any OUI prosecutions.
Although prosecutors claim the number of cases affected by this issue was very small, some are seeking continuances in those cases that depend on Breathalyzer evidence or waiting for more information.
If you are charged in Massachusetts with an OUI, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.
More Blog Posts:
Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015
Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014