- Associated Press - Monday, February 27, 2017

SPRINGFIELD, Mass. (AP) - Because of lax state protocols, thousands of drunk driving cases in Massachusetts could be at risk.

District Court Justice Robert Brennan ruled that because of a lack of reliable standards by the Massachusetts Office of Alcohol Testing, any breathalyzer test calibrated between June 2012 and September 2014 cannot be used by the state in any criminal prosecution unless the prosecution proves that that particular test was properly calibrated.

“In the absence of written protocols, it cannot be assumed that any particular calibrator understood or routinely applied the proper standards in calibrating a device,” Brennan wrote.

There are 535 drunk driving cases statewide that are part of this case, but an estimated 2,000 to 3,000 other cases have been stayed until the issue is resolved.

Joseph Bernard, a Springfield-based lawyer who was one of the lead defense attorneys in the case, said there could be as many as 20,000 drunk driving cases around the state that involved breathalyzer tests from that time period. It is an open question what will happen to prior convictions based on those tests.

“Certainly anyone who has been convicted on that machine should look into the validity of the conviction, whether it was a plea or whether it was a trial,” Bernard said. “It certainly raises questions for anyone who was convicted.”

The 535 drunk driving cases will not be automatically overturned, but will go back to the courts where they came from to be tried using Brennan’s guidance that the breath tests cannot be automatically considered reliable.

Both sides have 30 days to decide whether to appeal to the Supreme Judicial Court.

The test at issue is the Alcotest 9150, a breathalyzer test developed by Draeger Safety Diagnostics, which is currently the only breathalyzer test used in Massachusetts. According to the Massachusetts Executive Office of Public Safety, which oversees the Office of Alcohol Testing through the Massachusetts State Police, there are 392 of these breath tests in Massachusetts today. The tests are typically recalibrated annually. Seven tests are currently being serviced and the others have all had their settings checked by Draeger. So every test being used today has been confirmed by the manufacturer to have the correct settings.

Felix Browne, a spokesman for the Executive Office of Public Safety, said the department’s general counsel is reviewing the decision, and the office has no comment at this time.

The Alcotest 9150 uses a type of technology that has been around since the 1970s to determine how much alcohol is in someone’s breath. The defendants, who are individuals charged with driving while under the influence, and the state each raised numerous arguments, with competing expert witnesses, about whether the test is reliable.

In his ruling, Brennan determined that the test works in a lab setting, and the computer source code is reliable. The test is used for breath testing in 20 countries. Although the defendants argued that the science related to breath tests is evolving, the court found that the use of breath tests remains sound science.

The problem that the judge found, however, relates to the Office of Alcohol Testing’s management of the breathalyzers.

The Office of Alcohol Testing is responsible for calibrating and maintaining all breath tests used in Massachusetts to make sure they are working properly.

The court found that until 2014, there were no written policies in place covering the responsibilities of office scientists or the management of the equipment. There were no written protocols for standardizing testing and calibration procedures.

Between 2012 and 2016, the office’s technical leader, Melissa O’Meara, instituted a series of policies and protocols. But before that, the protocols were simply worksheets with checkboxes, and a scientist would paper clip his work to the sheet. Many technical specifications and procedures were not written down but spread through word of mouth or shared informally at meetings, O’Meara testified. This included procedures for preparing breathalyzer tests, for testing solutions and gases and for quality control, among other things.

As a result, Brennan found that from the time the Alcotest 9150 was put into use in June 2012 until September 2014, the state has not shown that it had a reliable method for calibrating the test.

According to court documents, the case involved six attorneys for the state and eight for the defendants, and the judge approved the use of more than $350,000 in public money. Witnesses traveled from as far as Germany and Sweden for the 10-day trial.

The case was tried in Concord District Court. A spokeswoman for Middlesex County District Attorney Marian Ryan could not immediately be reached on Monday.

___

Information from: The Springfield (Mass.) Republican, https://www.masslive.com/news/

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