Mass. high court hears arguments in closely watched breathalyzer case

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Massachusetts highest court is weighing arguments in a case some legal experts say could unravel into another state crime lab debacle and set the stage for the dismissal of tens of thousands of drunken driving cases.

"Twenty-seven thousand defendants whose convictions or admissions arose in the shadow of government misconduct await this court's decision to see if the right to fundamental fairness will be upheld," attorney Murat Erkan told the state Supreme Judicial Court during oral arguments Wednesday.

The case before the court centers on drunken driving charges against Lindsay Hallinan. In 2013, she "admitted to sufficient facts" in the Salem District Court case against her. The plea meant that Hallinan agreed there was enough evidence for a guilty conviction. The agreement stipulated, however, that if she complied with certain conditions a guilty plea would not appear on her criminal record.

After Hallinan's plea, it was discovered that some breathalzyer testing machines — which estimate a person's blood alcohol content — were faulty because they had not been routinely calibrated to ensure their accuracy. The revelation led to litigation and an investigation by the state Executive Office of Public Safety and Security (EOPSS).

State review of breathalyzer machines

A scathing 2017 report by the public safety office reviewed the Draeger Alcotest 9510 machines and records about the machines' shortcomings. The report found the Office of Alcohol Testing (OAT), the state office in charge of the tests, covered up the extent of the machines' problems. The OAT said the failure rate for the machines was less than 1%, but the public safety office's investigation found OAT concealed some calibration documents and concluded the machine's failure rate was likely much higher.

In a 2021 ruling, then-District Court Judge Robert Brennan said all tests from the Draeger Alcotest 9510 machine done between 2011 and 2019 should be excluded from criminal prosecutions. His ruling also required the state to notify the 27,000 people whose drunken driving cases were based on testing done during that time.

Brennan also said it was up to the state's highest court to determine if the conduct of employees at the Office of Alcohol Testing warranted dismissals or new trials for all of the cases involved.

At Wednesday's hearing, Justice Frank Gaziano said the state's 2017 report on the office and its attempts to conceal problems with the machines was "incredibly troubling," adding it "makes your blood boil."

Gaziano asked Essex Assistant District Attorney David O'Sullivan why the Supreme Judicial Court should not see the faulty breathalyzer tests in a way similar to how it viewed the state's infamous drug lab scandals from nearly 10 years ago.

In those separate scandals, two former state chemists were convicted for their misconduct while testing samples, resulting in tens of thousands of drug conviction dismissals. Noting that in those cases — and this one — government agencies deliberately concealed potentially tainted evidence, Gaziano asked O'Sullivan to explain the difference between them.

"We had people purposefully hiding evidence from defense counsel and the prosecutors and the court," Gaziano said during O'Sullivan's arguments. "Why isn't this a dismissal with prejudice?"

O'Sullivan said after the EOPSS report, the state took remedial steps to identify which machines were not properly calibrated. Unlike the drug lab cases, O'Sullivan said the breathalyzer cases could be more easily re-constructed to determine if a faulty machine was involved and if the case should be re-tried. He said the documents involving the machines were made accessible through an online portal.

"The parties agreed to far-reaching remedial measures," O'Sullivan said. "Every document related to those machines is easily navigable, by anyone."

In Hallinan's case, O'Sullivan said a faulty machine was not involved. He also said Hallinan failed four field sobriety tests when she was pulled over at a sobriety checkpoint, and this was her second drunken driving offense.

Hallinan's attorneys argued she would not have pleaded to sufficient facts if the defense had been aware of the problems with the breathalyzer machines and their oversight.

"The Commonwealth induced her to forego trial by presenting her guilt as a scientific fact — a fact conclusively proved by a breath test result which it held out as unimpeachable," attorney Erkan wrote in his brief to the SJC.

He further argued that many people who submitted to the state's breathalyzer tests likely did so because they did not believe they were impaired.

"The Commonwealth's representation that their breath test unassailably proved their impairment worked to erode their own confidence in their innocence," Erkan wrote, "causing people to plead guilty not because they were guilty, but because a machine said they were guilty."

After Hallinan's plea, she was placed on two years of probation, served 14 days in a residential treatment program and was ordered to install an ignition interlock device on her car that requires a breath test for the car to start.

A ruling from the state's high court is expected by next summer.

This segment aired on December 8, 2022.

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Deborah Becker 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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