Berkshire legal experts weigh in: How will new ruling that tosses OUI breath tests affect cases?
PITTSFIELD — Evidence from certain breath-test devices can no longer be used at trial for most drunken-driving cases in Massachusetts, a district court judge ruled last week.
In Berkshire County, the decision could have an effect on the 212 pending operating under the influence cases in district court. District Attorney Andrea Harrington said Monday that her office would continue to prosecute such cases to the best of its ability with the remaining tools it has at its disposal.
"The court's order reflects the values of scientific reliability, training, transparency and accountability to the public," Harrington said in a statement. "While we hoped for a more definite date after which Breathalyzer tests may be used, the Berkshire DA's Office is committed to the same values, which are essential to fair and just prosecution."
Leonard Cohen, a Pittsfield defense attorney, said the decision "takes the breathalyzer and throws it out the window."
Salem District Judge Robert Brennan made the ruling last Wednesday, declaring that results obtained by the Alcotest 9150 — the breath test device commonly used at police stations — cannot be admitted as evidence at trial until the state's Office of Alcohol Testing is able to demonstrate the machines produce accurate results. OUI cases involving serious injury or death or is a defendant's fifth or greater offense are exempt from the ruling.
That methodology came under fire after it was revealed the state's Office of Alcohol Testing intentionally withheld documents that showed "failures of the calibration process" for the machines. The court had ordered the state office to produce all of the annual worksheets used to perform those calibrations.
The state office provided 1,976 documents, including 11 that showed instances of failed calibration. According to the ruling, the office intentionally withheld 432 additional worksheets that showed failed calibrations. The court described those 432 worksheets as exculpatory materials that might have benefited OUI defendants. About 40,000 more previously withheld documents were eventually turned over by the state office between Aug. 31, 2017, and Dec. 17, 2017.
The former technical leader of the state office, Melissa O'Meara, was fired in October 2017, just days after the release of a report on the irregularities in the release of the documents, according to the decision.
Cohen, a longtime critic of the use of Breathalyzer test results, said the intentional withholding of that information by the state office says something about how it felt about the accuracy of those machines.
"Once again, the courts have raised questions whether these magic machines can cut the mustard," he said Friday. "At some point in the future, the Supreme Judicial Court may decide that the state should wash its hands of the Breathalyzer altogether."
Brennan's ruling will require the Office of Alcohol Testing to apply for accreditation and "demonstrate that its current methodology will produce scientifically reliable BAC results."
In addition, the state will be required to certify all state office staff have been trained regarding their obligations relating to exculpatory evidence.
Results from those breath tests will not be permissible in court until those and other conditions are met.
Ruling 'great for everybody'
Pittsfield attorney Mark Brennan said Friday that he was in favor of the ruling and of holding the state to a better standard.
"Having the OAT be more responsible is great for everybody," he said.
Brennan, who is unrelated to Judge Robert Brennan, said some open OUI cases already have been affected by not being able to use test results to prosecute because of devices not being in compliance.
Mark Brennan said he's never really trusted the accuracy of the devices and would probably reopen some of the older OUI cases he was involved in that ended in guilty pleas.
Attorney David Pixely, of Pittsfield, said he thinks the decision is appropriate, noting inherent issues with the breath-test devices that employ a universal standard, rather than account for variations in body type.
Pixley said he supports keeping information from the devices out of court until a more demonstrably reliable alternative is adopted.
"Keep them out or show why they should come in," Pixley said. "There's so many different ways (the results) could be wrong."
In the meantime, Harrington said her office will use other indicators of intoxication to establish a basis for prosecution, including blood-alcohol content, field sobriety tests, witness testimony and any evidence showing how much alcohol was consumed by a defendant over a period of time.
The court ruling, however, won't change how Pittsfield police approach arrests of those suspected of OUI.
"Probable cause for arrest is based upon observations of operation, interaction with operator, observations of operator, scent of alcohol and performance on scientifically proven divided attention tests," Pittsfield police Sgt. Marc Maddalena said in an email response to questions from The Eagle.
Judge Brennan's decision also doesn't prevent police from using portable breath tests during traffic stops. Maddalena said results from those devices have never been admissible in court.
Instead, he said, the ruling will only apply to the devices kept in police stations to administer tests during booking to determine blood-alcohol content.
"The bottom line is that officers will continue to look for and arrest those suspected of operating a motor vehicle while under the influence of alcohol and use the same proven methods in doing so that we have been for the last several years," Maddalena said.
Bob Dunn can be reached at email@example.com, at @BobDunn413 on Twitter and 413-496-6249.
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