SALEM — After more than four years, prosecutors in Essex County will resume using the results of Breathalyzer tests in court after the state lab that oversees the devices announced they had obtained national accreditation and a judge allowed their use, a spokeswoman for the Essex District Attorney confirmed this week.
The use of the tests had been suspended in 2015, after it was discovered that a new batch of machines, the Draeger Alcotest 9510, purchased in 2011, had not been properly calibrated to meet a stricter standard in Massachusetts.
The machines are used to measure the blood alcohol level of drivers suspected of being impaired by alcohol. Drivers who show a result of .08 or higher are presumed to be impaired.
The machines are used by every police department in Massachusetts, as well as by the state police and by campus police departments.
Then, over the course of several years of litigation, it was learned that the devices had not been subjected to a vetting process by the courts known as a Daubert-Lanigan hearing, to determine their reliability as evidence. And during that process, in 2017, now-former officials of the state Office of Alcohol Testing had withheld evidence that could have called that into question.
As a sanction for that misconduct, Judge Robert Brennan ruled that none of the results of breath tests conducted on the Draeger machines from 2011 until the lab gained accreditation could be used in court — that opened the door for potentially thousands of people with drunken driving convictions to seek new trials.
This week, state officials announced they had won accreditation for the Office of Alcohol Testing.
“The Office of Alcohol Testing worked diligently to meet and even exceed the court’s requirements, achieving accreditation months ahead of schedule,” Public Safety Secretary Tom Turco said in an emailed statement.
“As a result, Massachusetts is one of a select number of states with a fully-accredited lab to certify and calibrate its breath test devices,” Turco said.
“There is no question that OAT has both the technical expertise and the professional integrity to handle this responsibility, and we’re pleased that the court reached the same conclusion in allowing breath test evidence back into the courtroom.”
Brennan, in his decision allowing the results to again be used in court, did note that the OAT had delayed the disclosure of a letter of accreditation assessment from the National Accreditation Board for nearly a month, something that “certainly inspires little confidence in OAT’s ability to conduct itself as a public institution or its willingness to fully embrace a change to its guarded, uncooperative ways.”
“Ultimately, however, the Court’s purpose is to determine the point at which the breath tests produced by the Alcotest 9510 ... are reliable and when the public would trust them as reliable,” Brennan wrote. He concluded that the success of the OAT in gaining accreditation, and the lab’s efforts to improve responsiveness and transparency, addresses that concern.
The lab has also trained all of its employees on their obligation to comply with court orders to turn over evidence, the judge noted.
Carrie Kimball, a spokeswoman for Essex District Attorney Jonathan Blodgett, said their office will resume use of test results in cases going forward, in accordance with Brennan’s decision.
State House reporter Christian Wade contributed to this report.
Courts reporter Julie Manganis can be reached at 978-338-2521, by email at firstname.lastname@example.org or on Twitter at @SNJulieManganis.