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27,000 Mass. drunken-driving convictions may be tossed out due to faulty breathalyzer machines, lawyer says

Thousands of convicted drunk drivers in Massachusetts are being informed they may be eligible to have their convictions vacated due to past problems with the type of breathalyzer machine used statewide, according to a lawyer who has been litigating the matter for years.

Attorney Joseph Bernard said that over 27,000 letters are being mailed to defendants whose breath tests were calibrated between June of 2011 and April 17, 2019, following a court ruling that found those test results should have been excluded from evidence.

Bernard said in a statement that the court initially excluded a smaller set of test results that were not the product of scientifically sound methodology. But later, Bernard said, a probe by the state Executive Office of Public Safety and Security found the Office of Alcohol Testing, or OAT, intentionally withheld exculpatory evidence.

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State officials say the alcohol testing office achieved full accreditation months ahead of schedule last year, and that the Executive Office of Public Safety & Security hired a former judge to review and make recommendations on OAT’s compliance with discovery obligations to prosecutors and defense lawyers. The alcohol testing staff received relevant training in February and March of 2019, according to the state.

Bernard noted in his statement that the alcohol testing office gained accreditation in 2019 and said that in light of its prior “misconduct,” prosecutors have agreed not to attempt to admit breath test results obtained during the relevant period as evidence in OUI (operating under the influence) cases, except in matters involving motor vehicle homicide by OUI, operating under the influence causing serious bodily injury, and OUI liquor as a 5th or subsequent offense.

“Over 27,000 notices are being sent out," Bernard said. "The dysfunction and inappropriate activities by the Office of Alcohol Testing has had an enormous impact on the entire criminal justice system.”

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Bernard’s announcement Thursdaycame roughly eight months after Concord District Court Judge Robert A. Brennan allowed law enforcement in Massachusetts to resume using breath test evidence in drunken-driving prosecutions and also ordered the state to notify thousands of drivers that their convictions could be overturned because of unreliable machinery.

Brennan’s ruling grew out of years of litigation between the defense bar, the state’s Office of Alcohol Testing, and eight district attorneys that revealed that Draeger breath-testing machines were not properly calibrated and were therefore unreliable as evidence.

In July, Brennan ruled that the Office of Alcohol Testing had been sufficiently overhauled and earned accreditation from a national agency, clearing the way for police to use the machinery in drunken-driving cases — once the breathalyzers underwent calibration testing by the state office.

The judge, during the long-running litigation, also ruled that breathalyzer results using a Draeger breath test machine dating back to Sept. 14, 2011, are unreliable on their face. As such, drivers convicted or pleading guilty because of the breath test results can now consider asking a judge to dismiss their convictions.

At the time of Brennan’s July ruling, Bernard stressed that even if a judge throws out a breath test, a conviction may stand based on the testimony by police that the person smelled of alcohol, stumbled as they walked, or failed other field sobriety tests.

Vincent J. DeMore, who handled negotiations for the Executive Office of Public Safety while a Suffolk assistant district attorney, said in July that those with a single drunken-driving conviction are most likely to try to undo their conviction or guilty pleas.

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Repeat drunk drivers, he said, rarely agree to take the breath test and instead hope to challenge police during their trials. “Anyone who is drinking and driving is a threat to the public,’’ DeMore said. “But the people who did it more than once — those people are a real grave threat.”

The alcohol testing office received its accreditation in the field of forensic calibration on June 14 of last year.

“The Office of Alcohol Testing worked diligently to meet and even exceed the court’s requirements, achieving accreditation months ahead of schedule," said Jake Wark, a spokesman for the state’s Executive Office of Public Safety and Security, in a statement at the time of Brennan’s ruling.

The breathalyzer issue isn’t the only matter that has affected a large swath of prosecutions in recent years.

The state Supreme Judicial Court in 2017 dismissed more than 20,000 drug convictions linked to former state drug lab chemist Annie Dookhan, who served three years in prison for tampering with evidence and reporting results from tests she never conducted. And last September, state officials confirmed that more than 24,000 charges from more than 16,000 cases in Massachusetts have been dismissed because they were tainted by the misconduct of another former state drug lab chemist, Sonja Farak.

Farak pleaded guilty to stealing from narcotics evidence in January 2014 and was sentenced to 18 months behind bars.

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John R. Ellement and Danny McDonald of the Globe Staff and Correspondent Shawn Musgrave contributed to this report.


Travis Andersen can be reached at travis.andersen@globe.com. Follow him on Twitter @TAGlobe.