MetroWest Daily News – by Norman Miller
Prosecutors trying to get convictions for people suspected of driving drunk have seen their jobs get much more difficult after a Massachusetts judge ruled this week that Breathalyzer tests cannot be used as evidence in court.
Judge Robert Brennan, who was hearing a consolidated test case that involved more than 400 Breathalyzer exams throughout the state, ruled the tests can’t be used until the Office of Alcohol Testing proves it results are accurate.
Brennan’s ruling is being hailed by MetroWest defense attorneys as fair.
“I think it’s the right decision,” said David Levinson, a Framingham lawyer. “There have been so many issues with the various testing devices. There has to be some kind of accountability.”
It would be wrong for people charged with operating a vehicle under the influence of liquor to be jailed when the tests could be flawed, said another Framingham-based attorney, Daniel Cappetta.
“Right now, there’s serious cause to doubt the scientific results,” he said. “Judge Brennan has rightly decided these tests shouldn’t be used to take anyone’s liberty.”
A Breathalyzer is a device for estimating blood alcohol content from a breath sample. It is illegal throughout the United States to drive a vehicle with a breath alcohol concentration of .08 percent or higher.
The Springfield Republican reported Wednesday that Brennan said the Office of Alcohol Testing must undergo major reforms, including providing additional training for staff and instituting rules for complying with discovery requests similar to those followed by the state police’s crime management unit.
The decision comes after a judge found that the office failed to release evidence to lawyers representing drunk-driving defendants that showed about 400 Breathalyzer results were flawed.
The technical leader of the office was fired, and prosecutors tossed evidence from thousands of drunk-driving cases as a result.
The office plans to apply for national accreditation by August.
In a statement, Middlesex District Attorney Marian Ryan said her office is monitoring that accreditation process.
“We are reviewing yesterday’s ruling,” she said, according to the statement. “Moving forward, we will continue to be in contact with OAT regarding the date for their compliance with the judge’s order.”
Bellingham Police Chief Gerard Daigle said the news will change how drunken-driving cases are handled in court. According to state law, if someone refuses a Breathalyzer test, that cannot be revealed in court so as to not prejudice a judge or jury. Daigle said that forces officers to testify to other evidence to prove someone was driving drunk.
Now, Daigle said, every case will be like that.
“I expect to see more of an emphasis on observations of the subject, both at the scene and at the station while being booked and in custody,” he said. “Recognition of the signs and symptoms of impairment will be crucial. It’s similar to what is needed if the tests were refused.”
But Natick police spokeswoman Lt. Cara Rossi said it won’t change how officers handle drunk-driving investigations, and that Breathalyzers will still be administered.
“It is not going to have an effect on how we conduct business,” she said. “Obviously, roadside, nothing will change. This will be an issue in court, but not for the men and women out there trying to prevent tragedies by recognizing and arresting impaired drivers. We will continue to do our jobs to the best of our ability and continue to try to make our roadways as safe as possible for all of us.”
In Marlborough, police spokesman Sgt. Daniel Campbell said police are waiting for direction from the District Attorney’s Office on how to handle the ruling.
https://www.metrowestdailynews.com/news/20190111/breathalyzer-court-ruling-roils-prosecutors-police