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Judge allows Mass. cops to resume using breathalyzers

Judge Robert Brennan had ordered a statewide pause last year pending a review of the tests’ efficacy


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By Rick Sobey
Boston Herald

BOSTON — Breathalyzers are back in business in the Bay State after a judge dropped the suspension on breath tests, which cops use to bust and prosecute drunk drivers.

Salem Judge Robert Brennan, who in November ordered the statewide exclusion of breath test results, has tossed out the police Breathalyzer pause.

The Draeger Alcotest 9510 breath tests have come under fire for several years, as a Springfield OUI attorney represents defendants in statewide Breathalyzer litigation. Lead defense attorney Joseph Bernard has been raising concerns about the software problems impacting the scientific reliability of the breath test.

But the Salem judge in the ruling vacating the Breathalyzer suspension said the Draeger Alcotest 9510 “produces scientifically reliable breath test results.”

“As this Court observed in its February 16, 2017 Memorandum of Decision, there is no perfect source code; there is no flawless machine,” Brennan wrote in the ruling. “Nor is that the standard for admissibility of scientific evidence in this Commonwealth.

“This Court remains satisfied that the public can have full confidence in the results produced by the Alcotest 9510,” he added.

Before the breath test suspension was issued in November, 10 of the 14 Massachusetts DAs had elected to forgo Breathalyzer evidence for much of the past year.

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Bernard, the OUI attorney, told the Herald that he’s “concerned” with the judge lifting the suspension.

The lawyer claims the Office of Alcohol Testing has hidden key information from prosecutors, DAs and the Salem judge. Bernard alleges OAT implemented a new software program that defense experts claim changes the source code and the calibration process of the machines, and may directly impact the breath test result.

“I’m concerned because of the Office of Alcohol Testing, and their lack of candor and transparency,” Bernard said. “The entire legal community, prosecutors and legal defense should be concerned. It’s a huge problem.”

The Massachusetts State Police oversees OAT. When asked to respond to Bernard, a State Police spokesman wrote, “We have no additional comment. The rulings speak for themselves.”

The judge did note that there will be a future hearing about OAT.

Brennan wrote, “Whether OAT ... can achieve a level of transparency, communication, competence, and trust with all in the legal community and thereby inspire public confidence in this aspect of the criminal justice system remains an open question that will be addressed in a further hearing as ordered by the Court.”

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