25 Investigates: Defense lawyer wants indefinite suspension of breath tests

Claims State withheld important evidence in ongoing litigation

The lawyer leading the fight against the Massachusetts Office of Alcohol Testing wants the suspension of breath test evidence in statewide prosecutions to be indefinite.

Springfield Based Attorney Joseph Bernard filed a new motion Friday accusing the lab responsible for maintaining breathalyzers in Massachusetts of withholding important information from all parties involved in the six-year legal battle. It’s the latest filing in ongoing litigation challenging the scientific reliability of breath test results in the Commonwealth.

Attorney Bernard told 25 Investigates reporter Ted Daniel that he stumbled upon documents that show the Office of Alcohol testing implemented a new software program in Breathalyzer machines police use to determine if drivers are under the influence of alcohol. Bernard said the new software program impacts the source code and calibration of the devices and may impact breath test results.

“They began implementing what they refer to as performance and verification testing, through the months of September, all the while we were involved in the litigation” Bernard explained. “For them to sit idly by and not tell anybody what they were doing in the background is a disaster.”

A Salem Judge ordered the statewide exclusion of breath test evidence from OUI prosecution in November based on previous concerns raised by Bernard. Judge Robert Brennan has not ruled on Attorney Bernard’s latest motion.

When 25 Investigates contacted the Massachusetts Office of Alcohol testing for comment we were directed to State Police. 

A State Police spokesperson emailed, “We do not comment on pending litigation but please note that, as articulated in its prior Memoranda of Decisions, including the attached ruling issued yesterday, the Court remains satisfied that the Alcotest 9510 breathalyzer machine produces scientifically reliable results.”