Massachusetts Breathalyzer Scandal: District Attorneys’ Agreement May Open Doors to Case Challenges

My post today requires an important caveat at the start. It concerns Massachusetts drunk driving charges – and I want to be very judicious and careful in writing this material. I don’t want my readers to take away the wrong message from it. So I will reiterate what I have said many times before, in writing and in comments to the media: Drunk driving, driving while intoxicated, driving while impaired, or any of several other terms of art commonly utilized to describe driving drunk or drugged, is NOT “okay.” It is NOT acceptable. And in my view as a Massachusetts OUI defense lawyer,aside from important legal issues, it is not morally acceptable to knowingly drive while drunk or chemically impaired. To do so while knowingly impaired, can be the moral equivalent of saying, “Yes, I could kill someone with this one-ton construction of steel and glass, but I don’t care – I’ve got someplace to go.”

Thus, I want to be very judicious here, and not send the wrong message about drinking and driving being in any way “okay.”  However, it is also a very important fact that many, many people are stopped and arrested by Massachusetts police departments every month and year, and charged with drunk driving when they were not legally drunk at the time they were arrested.  Every defendant accused of a crime deserves a vigorous and zealous defense, and that includes such drunk defendants, as well.

At this time last year, I wrote of how a dedicated group of Massachusetts criminal defense attorneys had exposed a cover-up involving defects surrounding the most common breathalyzer machine used by the majority of Massachusetts Police Departments. The cover-up wasn’t initiated or participated in by any of the state’s 11 District Attorneys’ offices across Massachusetts. Ultimately, it turned out that the Massachusetts Office of Alcohol Testing (OAT) was responsible for attempting to cover-up widespread failures of the Drager 9510 Breathalyzer, which has been the most commonly used breathalyzer in Massachusetts for several years. The story broke in 2015, when the Massachusetts Executive Office of Public Safety office first acknowledged that “some” breathalyzers were flawed.

Subsequent pushing for additional evidence and information by a group of Massachusetts criminal defense attorneys who commenced legal action against the state uncovered the fact that the state OAT had misled not only defense attorneys about the failures of the Drager 9510, but they misled District Attorneys’ offices across Massachusetts, also. The hundreds of Assistant D.A.’s across the state, who prosecute a wide range of criminal cases every day, were not informed by the OAT of what was going on, and they had no knowledge of the Drager 9510’s unreliability. Initial reports estimated the number of cases affected statewide by this scandal to involve almost 36,500 tests. As a Massachusetts OUI/DUI defense attorney, I don’t think the number is actually that high.  A lot of those tests likely include people who blew into a breathalyzer several times, as well as people who took the tests not because they were just arrested for Massachusetts OUI/DUI charges, but to get released from protective custody at a police stations “drunk tanks.”

Initially, the state’s District Attorneys’ office, through the Massachusetts Association of District Attorneys, agreed with the group of defense attorneys to preclude breathalyzer testing in cases that were brought from June 2011 to September 2014. Just this past week, however, the D.A.’s offices entered into an agreement with the defense attorneys who exposed this scandal (and that’s what it is,) to extend the cases where breath testing will not be used against defendants in OUI/DUI cases, to Aug. of 2017.

For defendants who may have been charged with Massachusetts OUI offenses due to inaccurate breathalyzer readings from June 2011 to August of 2017, that’s good news. But a few caveats to those defendants, before celebrating prematurely:

1) Those cases will not automatically be dropped. Instead, the agreement that statewide D.A.’s offices agreed to this past Tuesday (Aug. 14), would allow convicted defendants or defendants who had previously entered a plea of Continued Without A Finding – CWOF – a common plea not uncommon with first offenders) to file a motion for a new trial, and at that new trial breath test evidence would not be introduced, unless certain exceptions apply to that case, as follows:

  • Any retrial where the case involves charges of motor vehicle homicide while driving under the influence
  • Any retrial where the case involves serious bodily injury while operating under the influence
  • Any retrial involving a fifth or subsequent charge of OUI/DUI

2) The agreement would also allow for reviews of probation requirements for any prior defendants who were placed on probation after they entered a pleas of Continued Without A Finding.

3) However, one important point in the negotiations that produced this agreement remains unresolved: The District Attorneys’ offices want to close the date for cases where breathalyzer evidence is barred at Aug. 31, 2017. The group of defense attorneys who exposed this scandal, however, want breathalyzer tests barred in any case until state Office of Alcohol Testing (OAT) becomes accredited. The OAT has agreed to seek accreditation (note: “seek”, not necessarily “receive”) by August 2019, according to the agreement reached last Tuesday..

4) And last but not least, the agreement would need to be first approved by the judge who has been tasked with overseeing this matter, District court judge Robert Brennan. Presuming that Judge Brennan approves of the balance of the agreement, he will choose a final date for excluding breathalyzer evidence on future cases or retrials.

Once more: Do not drive a motor vehicle in Massachusetts if you have had more than just one cocktail or beer. The risk that you could injure someone else, or yourself, is just too high. And if you never hurt anyone but still got arrested, do you really want to go through the stress- and financial expense – of a criminal OUI/DUI prosecution? Trust me, none of this is worth it. Don’t be a fool.

And many people aren’t fools – they don’t drive drunk, yet they can be arrested for this crime, and find themselves in a lot of trouble. All it takes is an un-calibrated breathalyzer test – and even if you don’t take a breath test and instead are required to take a series of roadside sobriety tests, many people fail them out of sheer nervousness. If you find yourself in such a position, call us and we can help you understand your options.  In the meantime, be smart and be safe.