Breathalyzer reliability in question, Massachusetts district attorneys put drunken driving cases on hold

A Drager Breathalyzer, used by the Pittsfield Police Department to evaluate blood alcohol content, sits ready for use at the department. 

Due to concerns over the accuracy of breath tests, thousands of Massachusetts residents could get a chance to overturn impaired driving convictions.

A 2019 court ruling requires Massachusetts district attorneys’ offices to contact 27,000 defendants who received a breath test and were convicted of operating under the influence between June 2011 and April 2019.

The Berkshire District Attorney’s Office will send around 900 letters next week to defendants’ addresses as listed in the Registry of Motor Vehicles, spokesperson Andy McKeever said in an email.

Those defendants can move for a new trial, and the letter encourages them to contact their attorneys or the Committee for Public Counsel Services, McKeever said.

“If the case is based solely on the breathalyzer, we will ask the court to dismiss the case,” McKeever said. “If there is other evidence, then the court will likely grant a new trial.”

The opportunity, attorneys say, will primarily help people who pleaded guilty due to a high breath test reading. Berkshire attorneys have long expressed concerns with breath tests’ accuracy.

“People who were failing breath tests were pleading guilty, and had they not had a breath test in the case, they might have considered trying,” said Elizabeth Quigley, a Pittsfield attorney. “I think judges will routinely invalidate their pleas or grant new trials now if they want them.”

“I think it’s admirable that they’re revisiting this now, but they’re doing it late,” said Mark Brennan, a Pittsfield attorney. “In the meantime, people have had to pay fees, pay fines. People may have lost a job or a driver’s license. There’s a lot of ripple effects from it.”

Having fought for six years to overturn his conviction, Matt Mottor, of Hinsdale, knows those effects well. In Mottor’s case, a breath test put his blood alcohol level at exactly the legal limit.

“The prosecutors kept pushing that it’s 0.08, and at 0.08 you have to convict,” Mottor said.

The jury found him guilty, but Mottor later learned that the breath test should not have been allowed as evidence. Mottor’s second attorney, Joseph Bernard, led the defense in the case that saw the state temporarily exclude breath test results.

Mottor overturned the guilty verdict. But in his three months without a license, he needed the help of friends and family to get him to and from his job as a chef at Jiminy Peak in Hancock.

“Getting home, you’d have to figure it out,” Mottor said. “If I had to sleep in an office, fine. You’re at the mercy of what everybody else is doing at that point. There’s no Uber around. You’re not calling for taxis around here.”

Mottor, who has since started his own business, said he likely spent around $30,000 total on his two attorneys. But he credits his eventual victory for allowing him to make improvements in his life.

“Some people don’t see [fighting a conviction] as worth the money because they’ve already gone through it and put it behind them,” said Mottor, now a chef and owner of Berkshire Culinary Group in Dalton. “Trust me, there’s nothing right about drinking and driving. But where I am now, I have my name on a liquor license. I would not have been able to do that with a conviction.”

In the case Bernard led, Judge Robert Brennan (who is not related to Mark Brennan) ruled the state could not use most breath tests as evidence in courts until the Office of Alcohol Testing received accreditation. That office was found to have withheld documents that showed “failures of the calibration process” in 2017, and Brennan ruled that year that its methodology “did not produce scientifically reliable [blood alcohol content] results.”

Use of breath tests as evidence resumed in July 2019.

Defendants convicted of motor vehicle homicides, bodily injuries and fifth offenses for operating under the influence were excluded from receiving the letters, McKeever said.

Some defense attorneys still have concerns with breath tests, and they often recommend that defendants refuse a test. Variations in the defendant’s blood thickness and body temperature, when the test is taken and where the air is blown from may alter results, Quigley said.

While refusing a test subjects a defendant to a license suspension, a case without a breath test is “a much better case for the defendant,” Quigley said.

“They really do try to leverage you into taking the test if you’re arrested, based on the consequences of refusing the test,” Quigley said. “[But] if you have a breathalyzer above .08, a lot of your task in the case is to beat the breathalyzer.

“I’m also a member of the community who wants to see the roads safe, but these breathalyzers are sometimes not as accurate as we would like to believe,” she said.

Danny Jin, a Report for America corps member, is The Eagle’s Statehouse news reporter. He can be reached at djin@berkshireeagle.com, @djinreports on Twitter and 413-496-6221.

Statehouse reporter

Danny Jin is the Eagle's Statehouse reporter. A graduate of Williams College, he previously interned at The Eagle and The Christian Science Monitor.