TEMPORARY BAN ON BREATHALYZER TESTS AS EVIDENCE IN COURT
January 10, 2018
A Massachusetts District Court has ruled that no Breathalyzer tests administered in the state can be used as evidence in court until the office of Alcohol Testing proves the accuracy of its results.
The Office of Alcohol Testing, a subdivision of the state police crime lab, oversees the state breath test program. It is responsible for ensuring that all breath test instruments used by the state are certified as well as ensuring control standards used with breath test instruments are approved and properly distributed. The office is also responsible for setting the standards for breath test training and certification of its officers.
Judge Robert Brennan found that the office failed to release evidence to lawyers representing drunken driving defendants that showed around 400 Breathalyzer tests were flawed. The judge added that the office must undergo major reforms, including providing additional training for its staff and instituting rules for complying with discovery requests similar to those followed by the state police’s crime management unit.
Attorneys Joseph Bernard of Springfield and Thomas Workman of Taunton, representing drunken driving defendants, have been challenging the accuracy of Alcotest 9150, administered by Draeger Safety Diagnostics, for years in court. In the course of litigation it was discovered that the Office of Alcohol Testing intentionally withheld important evidence from the defense lawyers.
Back in February of 2017 Brennan ruled that a lack of reliable standards by the OAT imperiled the use in court of Breathalyzer tests between the period of June 2012 and September 2014. Although Brennan found the test reliable, he did not find the way the tests were maintained reliable. It was not until August 2017 that the judge found that OAT intentionally withheld evidence. When OAT was ordered to provide all calibration and certification worksheets for the test, state officials handed over 1,976 worksheets—but intentionally withheld 432 worksheets that showed failed calibrations.
The Commonwealth responded by firing the technical leader of the office and launching an internal investigation of OAT through the Executive Office of Public Safety and Security. According to Brennan, the results of that investigation castigated OAT practices, having “identified various instances of intentional withholding of exculpatory evidence, blatant disregard of court orders, and other errors, all underscored by a ‘longstanding and insular institutional culture that was reflexively guarded at OAT.’” Public Safety Secretary Daniel Bennett has ordered OAT to make changes to its operations, particularly related to discovery.
The office plans on applying for accreditation from a national accreditation board by August 2019. While the state argued that it should be able to use Breathalyzer tests completed after August 31, 2017—the date when OAT released all its failed worksheets—the defense has said that Breathalyzer tests should not be considered reliable until OAT receives accreditation. Concurring with the defense, Brennan has stated that until the OAT is reaccredited, it will not be able to prove that its methodology will produce scientifically accurate results.
The impact of the temporary ban continues to be felt and the ongoing litigation remains substantial. By 2018, the state’s district attorney agreed to toss out questionable evidence from tens of thousands of drunken driving cases.
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