Thousands of Massachusetts drunk driving convictions could soon be tossed out

BOSTON — Thousands of convicted OUI defendants in Massachusetts may soon be able to wipe the slate clean.

The Executive Office of the Trial Court is working with local district attorney’s offices to mail letters to anyone who failed a breath test and was convicted of drinking and driving during an 8-year period.

“Court records indicate that an Alcotest 9510 breathalyzer machine was used in an Operating Under the Influence of Liquor case in which you were convicted,” said one copy of the letter obtained by Boston 25 News.

“A statewide hearing was conducted to determine the scientific reliability of breath test results. As a result of that hearing, all breath tests administered in Massachusetts between June of 2011 and April 18, 2019 have been excluded from use in criminal prosecutions. This may provide an opportunity for you to challenge the disposition in your case,” the letter said.

The notice has been mailed to at least 4,700 defendants in Worcester County, 4,600 in Middlesex County, 4,300 in Essex County, 2,000 in Norfolk County and 1,445 in Suffolk County, according to a Boston 25 inquiry with local district attorney’s offices.

The breathalyzer has been a controversial instrument in Massachusetts for years. In 2017, Judge Robert Brennan ruled breath test results were unreliable because the state’s Office of Alcohol Testing failed to properly maintain the machines. Judge Brennan temporarily banned the use of breathalyzers in court, then lifted the ban in July, 2019.

“This is pretty ground breaking,” criminal defense attorney Michael DelSignore said. “I’ve never seen a situation where they’re advising people basically for 8 years, if you took a breath test, you might want to come back because we’re not sure it’s accurate.”

DelSignore said drivers who may have pleaded guilty to OUI based on a faulty piece of evidence can feel vindicated.

“This development was major because people lost their jobs, they went to jail, they may have pled to a case they shouldn’t have because they assumed the breath test was reliable,” DelSignore said.

But advocates are disappointed thousands of OUI cases could be erased based on legal and scientific missteps.

“We’re definitely disappointed to hear this,” Mothers Against Drunk Driving Program Director Mary Kate DePamphilis said.

“We work with law enforcement every day and breath tests are not the only way to detect impairment,” DePamphilis said. “We would encourage those prosecutors and those judges to look at all the evidence. It’s not just the tests. It’s not just the breathalyzers.”

“To just throw that out would be putting more drunk drivers on the road,” she said.

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