Breathalyzers are Back

File under: OUI, Drunk Driving, Sobriety Tests, Alcotest

Breathalyzers are Back: Newly-Secured Accreditation for State Labs Clears the Way for Use of Breathalyzer Information in Forthcoming OUI prosecutions

The days of (too much) wine and roses for OUI defendants in Massachusetts are likely over. Earlier this June, the Office of Alcohol Testing, the state laboratory responsible for calibrating Breathalyzers received accreditation from ANAB – an organization that monitors and assesses compliance with forensic standards – clearing the way for prosecutors to once again use breathalyzer results at trial in OUI prosecutions. While prosecutors across the Bay State are likely breathing a sigh of relief at the news, the development is bad for defendants charged in new drunken driving cases.
At the risk of stating the obvious, a routine point of contention in drunken driving cases is whether or not the defendant is actually intoxicated. Although prosecutors can prove impairment with testimony (generally from the arresting officer) about how the driver behaved, appeared, sounded, and their performance of field sobriety tests, their preferred method is to introduce evidence that the defendant was “per se” intoxicated, based on having a blood alcohol concentration (BAC) in excess of the legal amount. Proving impairment via BAC – typically by introducing breathalyzer results – was fairly simple as an evidentiary matter and, as an added bonus, had the appearance of scientific objectivity.
For the past two years, however, prosecutors in Massachusetts have been largely precluded from the “per se” option. Police departments in Massachusetts, including the Massachusetts State Police, rely overwhelmingly on the Dräger Alcotest 9510 to conduct breathalyzer tests, and that machine has been the subject of intense litigation in Massachusetts, and nationally, for several years. A first round of Massachusetts lawsuits prompted a 2017 ruling that several years’ worth of Drager results were presumptively unreliable, after evidence emerged that the machines’ programming might be skewing results and, in any event, that virtually none of the Dragers in Massachusetts were properly maintained and calibrated by OAT. A second round of litigation uncovered that OAT concealed damaging information during the first lawsuit, a move that did not endear it to the court and led to the firing of the director of OAT.
With a dark cloud cast over both the tool and the lab tasked with maintaining its reliability, by early 2017 most District Attorneys in Massachusetts were directing their prosecutors not to rely on Drager breath test results at trial. As a practical matter, this meant that thousands of OUI cases were dismissed outright or went from being forlorn hopes to being extremely triable. Unable to point to a breathalyzer result to make their case, prosecutors were obliged to try to make their case on the police officer’s subjective impressions of the defendant, and – provided the driver wasn’t knee-walking drunk at the time they were pulled over – judges and juries were often willing to find that these observations did not amount to proof beyond a reasonable doubt, even in instances where someone failed one or more “field sobriety test”.
Sadly, those days are just about over. Over the past year, the OAT lab has been attempting to get its house in order, and secure accreditation. With the recent announcement of ANAB accreditation, state officials are predicting prosecutors will soon have a green light to introduce breathalyzer results at trial once again.
For defendants, this means that it is important to retain counsel who are knowledgeable about OUI defense, the strategies available for contesting and litigating what evidence is admissible in the pre-trial stage, and who can provide advise on the risks and benefits of going to trial versus resolving the matter via plea. Hedges & Tumposky, LLP attorneys have represented clients in numerous drunk driving cases for more than a decade, have experience in challenging and suppressing wrongfully-obtained or unreliable evidence, and have obtained not-guilty findings in trials before both judges and juries in cases where breathalyzer results were admitted in evidence.

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