Mass. judge bars breathalyzer tests as evidence in DUI cases, pending review

A judge ruled that concerns about the accuracy and management of the tests were significant enough to pause the tests' use as court evidence

By Will Katcher

BOSTON — A Massachusetts judge has ordered that breathalyzer tests be excluded as evidence against drivers charged with operating under the influence of alcohol, pending a review of the tests and the state lab charged with overseeing them.

In a ruling Monday, District Court Judge Robert Brennan found that concerns raised about the accuracy of the tests and their management by the Massachusetts Office of Alcohol Testing were significant enough to pause their use in court as evidence.

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Joseph Bernard, a defense lawyer challenging the reliability of breathalyzers, said that software malfunctions had produced unusable test results and that the OAT had failed to notify lawyers and defendants about that information.

Breath tests were also given by some people not certified to administer them, Bernard claims. Further, a cleaning protocol developed by OAT may have damaged an important part of the test devices, he said.

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“These issues clearly require prompt resolution,” Brennan said in his ruling. “Breathalyzer results undeniably are among the most incriminating and powerful pieces of evidence in prosecutions involving either alcohol impairment or “per se” blood alcohol percentage as an element. Their improper inclusion in criminal cases not only unfairly impacts individual defendants, but also undermines public confidence in the criminal justice system.”

The pause on using breathalyzer tests as evidence is only the most recent development in a year’s long challenge of their accuracy. In 2017, ruling on the reliability of tests taken between 2012 and 2014, Brennan found that while the tests were accurate, the way the state maintained them was not.

Later that year, the judge found that after OAT was ordered to provide calibration and certification worksheets for the tests, it had intentionally withheld hundreds that showed failed calibrations. A top OAT official was fired as a result.

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In 2018, prosecutors agreed to toss out evidence from tens of thousands of OUI cases.

Brennan ordered the next year that breathalyzer evidence be kept out of court until OAT underwent major reforms. After the OAT received accreditation, courts began accepting tests as evidence again.

Most district attorneys have since stopped using evidence from breathalyzers in court, WBUR reported in June. “As prosecutors, we must have confidence in the integrity of the evidence we present in court,” Suffolk County District Attorney Rachel Rollins said,

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