Breath tests in OUI cases are set to be excluded for 2011 to at least 2017.
It appears prosecutors are not using breathalyzer results in any drunk driving cases for the immediate future.
Defense attorneys and prosecutors have agreed that OUI breath test results will be excluded from all drunk driving cases from June 1, 2011 to August 31, 2017. There is also a chance that the exclusion period could stretch beyond last August. This stems from mismanagement and misconduct at the state office that oversaw the breath test machines. The settlement awaits final approval from a judge. The upshot is that tens of thousands of unreliable breath tests will be suppressed from evidence.
In addition, at least for the immediate future it appears that prosecutors will not attempt to introduce any breath test results in OUI cases. There is also a question as to what will happen to anyone who was convicted or pled guilty based on potentially faulty evidence. We will provide an update as soon as we get more info.
How this happened: a superior court judge ruled this past February that the Office of Alcohol Testing (OAT) lacked any written protocol to calibrate and certify the “Alcotest 9510” breathalyzer machine, the machine used throughout Massachusetts. This meant that the Breath Alcohol Content (BAC) results were not scientifically reliable. As a result, the judge initially excluded breath tests for a 2-3 year period. The litigation took hundreds of hours of work, expert testimony and $476,597.47 in costs to the Commonwealth, according to the judge who heard the case.
Then, a few months after the case ended the defense attorneys on the case learned that the Office of Alcohol Testing had withheld information during the initial lawsuit. The OAT had withheld at least 400 calibration tests which showed that the breath machines did not work properly. The calibrations were supposed to be done periodically to ensure that the machines produced accurate results. The OAT withheld these worksheets despite the fact that they had turned over almost 2,000 successful calibration worksheets to the defense lawyers. The OAT was overseen by the State Police at the time. The Secretary of Public Safety launched an investigation and the head of the OAT, Melissa O’Meara, was fired.
To date, the OAT still lacks accreditation by the American National Standards Institute as a crime lab. The OAT says it will apply for accreditation by August 2019, but the defense lawyers are arguing that all breath tests should be excluded until the lab can prove it can live up to national quality standards.