Massachusetts Breathalyzers Tests: Flaws Require Independent Review

The recent revelation that many of the breathalyzer machines used by many Massachusetts police departments, has resurrected a debate between law enforcement and prosecutors on the one side, and criminal defense attorneys on the other, over whether and how accurate these machines really are.

The controversy began in mid-March, when a fairly high number of breathalyzer results were found to be unreliable due to failures that were not fully explained at that time. The issue reached a fever pitch last week, when District Attorneys in eight Massachusetts counties – Suffolk, Middlesex, Essex, Cape & Islands, Worcester, Norfolk, Plymouth, and Northwestern counties – disclosed that their prosecutors were temporarily suspending the introduction of breathalyzer results into evidence in drunken-driving cases that were pending in their offices. Last week, The Boston Globe ran a lead editorial, calling for the temporary ban to be adopted statewide by all Massachusetts District Attorney’s Offices.

The Globe is wise to make such a call. The premise that breathalyzer machines can detect alcohol in a person’s breath, has never really been disputed. The problem has always been with the accuracy of the machines: If the machines are not regularly serviced, maintained, and calibrated accurately by specially trained police department users, the blood alcohol readings these machines produce can be highly doubtful. As a Dedham, Massachusetts OUI lawyer, I can’t tell you how many Massachusetts OUI charges I’ve had dismissed due to faulty breathalyzer readings. An example? I ‘ve had more than one OUI client, who was arrested on Massachusetts drunk driving charges, who had ingested nothing more than breath mints or mouthwash – which breathalyzer machines can mistakenly detect as alcohol. More commonly, the machines are not calibrated accurately, and thus the results they produce are flawed.

Yesterday, Massachusetts Public Safety Secretary Daniel Bennett announced that his office’s review of the problem has determined that fewer than 150 OUI/DUI cases were found to be flawed, reportedly due to mistakes police officers made in calibrating the machines, and not because of machine malfunctions. The state Public Safety Department also reported that the widely–used Draeger 9510 breathalyzers were functioning properly. Public Safety Secretary Bennett stated that his office will partner with the affected District Attorney’s offices to locate the 150 defendants whose cases may have been impacted by flawed breathalyzer test results.

However, more than one interested party in this controversy sees that as the fox guarding the chicken coop. To quote the Massachusetts Bar Association, “Some in the [legal]defense community would question the findings of a police department or police agency regarding the very device that they use to prosecute and convict individuals for drunk driving.” Count me as one of those parties. As a Wrentham, Massachusetts OUI/DUI lawyer, I’ve seen too many Massachusetts drunk driving prosecutions that were outright unjustified, given the breathalyzer testing involved. The MBA has called for Massachusetts Attorney General Maura Healey to commence an independent investigation into the device’s reliability, and I think this would be a wise move to assure public concern over this issue.

Everyone – myself included – opposes drunk driving. We need to remain ever vigilant about reducing the number of drunk drivers on the road. But we mustn’t do so at the expense of important legal rights and protections for all of us. If anyone disagrees with that, you might feel otherwise if you’ve ever been arrested for using mouthwash.

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