25 Investigates: Judge throws out breath tests from pending state OUI cases

Order could affect thousands of drunken driving cases in MA

A district court has ordered the complete exclusion of breath tests from OUI prosecutions across the commonwealth, 25 Investigates has learned.

Salem Judge Robert Brennan’s decision is part of ongoing statewide breath test litigation. Massachusetts uses the Draeger Alcotest 9510 machine to conduct breath testing.

Tuesday’s action means that if someone is scheduled to go to court next week on an OUI charge and the only evidence against them is the breath test machine, the case will likely get thrown out.


This is not the first time the breath test has been temporarily excluded as a result of a 6-year-old court battle being waged by Springfield attorney Joe Bernard.

Bernard has raised serious concerns about the scientific reliability of the breath test and the state-run office that is supposed to make sure the machines are working properly. He alleges that the state Office of Alcohol Testing became aware of the software issue with a certain brand of testing device and failed to take action.

Investigative reporter Ted Daniel spoke to Bernard soon after the judge’s order. He told 25 Investigates the order will likely last for the next couple of months when the next hearing on this case is scheduled.

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