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Concerning Delay in Reports of Tainted Breathalyzer Evidence

According to a recent article in the MetroWest Daily News, the state’s Office of Alcohol Testing (OAT), which certifies breath testing machines used around Massachusetts, appears to have known about a software issue that complicated dozens of drunken driving cases months before anyone moved to fix the problem. The article states that OAT recognized breath testing machines were failing to properly detect errors during calibration tests as early as February 2014. Although some police departments were instructed to give calibration tests extra scrutiny, it was not until fourteen months later, in April 2015, that the secretary of public safety asked the manufacturer of the machines to come up with a solution to the defective equipment.

Massachusetts began rolling out new breath testing machines in 2011. To demonstrate they are working properly, the machines are designed to measure a small sample of gas with an alcohol concentration of .080 percent. Under state regulations, the machines must return a measurement between .074 and .086 percent in order to pass the calibration test. By default, however, the machines are programmed with a wider tolerance. The machines accept measurements between .070 and .090 unless they are reprogrammed by the manufacturer. The state failed to customize the instruments with the correct settings when it bought them four years ago. Some calibration tests that should have failed under the state’s tighter regulations were therefore allowed to pass.

Police departments are required to periodically check their breath testing equipment by running a series of calibration tests. If any one of the measurements is outside the allowable range, the so-called “periodic test” has failed. Every subsequent breath test conducted with the machine is then called into question until the device completes another successful periodic test. Given the fact that the police are required to conduct these periodic checks, public safety officials maintain that the police should have caught the errors and thereby prevented breath test evidence from becoming tainted. The more significant issue, however, is that the Executive Office of Public Safety and Security (EOPSS) failed to notify court officials and defendants about the issues for a significant period of time. The article states that court records and interviews with defendants show that in some cases, it was months before people who were on probation for drunken driving charges learned of problems with the evidence in their cases.

Eventually, prosecutors around the state called on the EOPSS to conduct a comprehensive review of breath testing evidence. Although the review concluded that only a relatively small number of cases were impacted (EOPSS reviewed an estimated 39,000 breath testing records and determined that fewer than 150 OUI cases were affected), one-third of those cases occurred after the state’s alcohol testing experts had already acknowledged an issue with the software in the machines.

After completing its review, EOPSS concluded that there is no basis to doubt the underlying science of breath testing or the reliability of breath testing machines. In an email, EOPSS noted that police are trained to comply with state standards and the “overwhelming majority” did so. Still, the issue has affected scores of cases and raises significant concerns about the so called justice of the criminal justice system.

If you or a loved on has been charged with operating under the influence, you will need an experienced attorney to make sure that the evidence that Commonwealth seeks to introduce is scientifically reliable, accurate, and properly admissible. Without such safeguards, any so called protections put in place to ensure a defendant’s right to a fair trial are in name only. Attorney Daniel Cappetta has handled numerous OUI cases and will make sure that any tainted evidence offered against his clients is promptly thrown out. Call him for a free consultation today.

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