Agreement could throw out breathalyzer results in 34,000 drunk driving cases

BOSTON — A proposed agreement between district attorneys and defense attorneys in Massachusetts directs prosecutors to not use the results of breathalyzer tests as evidence in an estimated 34,000 drunk driving cases. 25 Investigates obtained a copy of the agreement that was submitted to a judge this week.

In early 2017, a judge already excluded breath test results in about 19,000 cases after defense attorneys raised concerns about dozens of inaccurate tests. A state investigation later found lab workers at the state Office of Alcohol Testing waited years to notify prosecutors about the inaccurate tests which led to the firing of the head of that department in October.

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"The government has admitted that they made a terrible mistake," said Springfield defense attorney Joseph Bernard, who led the statewide fight to exclude breath test results.

"We pay millions of dollars for this laboratory to test this machine, to take care of the machine, so they can produce results and they let us all down by hiding documents and deliberately not providing them," said Bernard. "Shame on the Office of Alcohol Testing. Shame on what they did. Hiding documents, not providing them. All they needed to do was to be honest and thorough. And they weren't. They let down the people of the Commonwealth, they let down the prosecutors, they let down the judge, they let down the whole system."

Bernard estimates the agreement with prosecutors could affect about 34,000 low-level drunk driving cases between 2011 and 2017. Cases involving death or serious injuries could still use breathalyzer test results as evidence if prosecutors can bring in experts to testify why the tests should not be excluded.

A spokesman for the Suffolk County District Attorney points out the agreement does not automatically drop any cases of operating under the influence, or OUI. He says the office will continue to prosecute suspected drunk drivers.

"Breath test evidence is one type of evidence but it’s certainly not the only type," said DA spokesman Jake Wark in an email to 25 Investigates. "You have other motorists’ observations, 911 calls, road camera footage, field sobriety tests, officers’ observations, etc, that can all help to prove the charges."

Former Boston Police Superintendent in Chief, Dan Linskey, also says cases can be proven without breathalyzer test results, but he acknowledged that some convictions could be overturned.

"If they're currently serving a suspension on their license and an overturned conviction were to allow them to get their license back and they were to then reoffend -- especially if they injured somebody severely -- that's certainly what we worry about," said Linskey.

Mothers Against Drunk Driving (MADD) also expressed concern about the proposed agreement. In an email statement, it told Boston 25 News:

"To dismiss evidence and the hard work done by our officers trying to keep our roads safe on the basis of a few faulty cases—seems like a disservice to the safety of the general public and to the victims in these cases."

The agreement between prosecutors and defense attorneys also requires the Office of Alcohol Testing (OAT) to get formal accreditation -- something other state forensic labs already have.

The state's Executive Office of Public Safety and Security told 25 Investigates OAT has been "working diligently to improve transparency by increasing the availability and accuracy of documents and data in its possession."

An e-mail statement also said:

"The integrity and accuracy of breath test instruments in use across the Commonwealth at this time has never been determined to be an issue in this case and we stand behind these instruments' ability to accurately determine the breath alcohol level of drivers charged with operating under the influence."

"Throughout this process, law enforcement agencies have continued to administer breath tests and OAT has continued to regularly certify the instruments. We maintain full confidence in the integrity and scientific reliability of these instruments as well as the Office of Alcohol Testing's ability to certify them."