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Mass. Prosecutors Stop Using Breathalyzer Tests in Drunk Driving Cases

A breathalyzer test is administered. The tests were barred from evidence in most Massachusetts drunken driving cases after it was discovered that the state wasn't transparent about flaws in testing. (KOMUnews/Flickr)
A breathalyzer test is administered. The tests were barred from evidence in most Massachusetts drunken driving cases after it was discovered that the state wasn't transparent about flaws in testing. (KOMUnews/Flickr)

Most district attorneys in Massachusetts have stopped using evidence from breathalyzer tests in drunk driving cases because of growing concerns about the reliability of the devices, prosecutors confirmed.

"As prosecutors, we must have confidence in the integrity of the evidence we present in court," said Suffolk District Attorney Rachel Rollins in a statement.

The move comes after a defense attorney alleged that the Massachusetts Office of Alcohol Testing, which is charged with checking the reliability and calibration of the machines, used uncertified operators to examine the devices.

The lawyer, Joseph Bernard, also questioned how test results were reported to the state Registry of Motor Vehicles and how testing machines were cleaned. Bernard asked state public safety officials last month for an independent investigation.

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The state insists the tests are accurate. The Executive Office of Public Safety and Security wrote to the Massachusetts District Attorneys Association last week saying that only 38 of 8,000 breath test operators were not properly certified.

“The breath test devices used in Massachusetts and the evidence they document remain reliable, and the results they produce remain valid," said Jake Wark, a spokesperson for the executive office of public safety.

District attorneys have started meeting to figure how to deal with the tests going forward. But in the meantime, many have suspended the use of breathalyzers, making it more difficult to prosecute people for driving under the influence. Without breath tests, prosecutors must rely on field sobriety tests or  testimony from police or other witnesses.

"A breathalyzer test is a bright line where a prosecutor points to evidence that someone was driving over the legal limit allowed as opposed to an opinion call by a police officer," said Bernard, the defense attorney.  "So it's an enormous uphill climb for a prosecutor to get a conviction without the test and the potential for not guilty verdicts soars."

District attorneys who have stopped using the tests include Rollins of Suffolk County, Norfolk County District Attorney Michael Morrissey, Cape and Islands District Attorney Michael O'Keefe's office, Middlesex County DA Marian Ryan, Berkshire County DA Andrea Harrington, Northwestern District Attorney David Sullivan, and Worcester County DA Joseph Early.

Some other district attorneys vowed to use the tests only in certain situations or to review the results more carefully.

A spokesperson for Essex County District Attorney Jonathan Blodgett says the office is not using the tests in OUI pleas "out of an abundance of caution," but could use them at trial in some situations.

Plymouth County DA Timothy Cruz said in a statement that his office is still reviewing the tests and will address concerns "on a case by case basis." And the Bristol County District Attorney's Office said it will closely scrutinize the test results before using them as evidence.

A spokesperson for Worcester County DA Joseph Early says the office is in the process of reviewing the letter from the state.

Hampden District Attorney Anthony D. Gulluni could not be reached for comment.

The breathalyzer test used in Massachusetts, the Draeger Alcotest 9510, has long been controversial. In 2017, a judge ruled the machines produced unreliable results, potentially raising questions about many past drunk driving cases. Earlier this year, the courts ordered 27,000 people be notified about the issue.

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Deborah Becker Twitter Host/Reporter
Deborah Becker is a senior correspondent and host at WBUR. Her reporting focuses on mental health, criminal justice and education.

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