State withheld evidence breathalyzer machine was faulty, lawyers charge

Lawyers for drunken-driving defendants are accusing the state of withholding evidence that a breathalyzer used in tens of thousands of cases may be unreliable.

In a motion filed last week, the lawyers alleged that the state Office of Alcohol Testing, which is responsible for ensuring the accuracy of police breathalyzers, failed to turn over documents that could have shown the machines provided flawed results hundreds of times over a two-year period.

“The intentional withholding of exculpatory materials was not a single act, but a series of calculated actions designed to prevent the receipt of discovery ordered by this court,” Joseph D. Bernard, a Springfield attorney who represents 750 drunk-driving defendants, wrote in the motion.

The cases were consolidated by the Chief Justice of the District Court in 2015, when doubts emerged about the reliability of the Draeger 9510 breath test machines, which are used statewide. Amid concerns that the devices were providing inaccurate results, at least eight district attorneys suspended the use of breath tests as evidence.

Bernard said the outcome could ultimately affect 58,000 drunken-driving cases since 2011, when the state first began using the machines.

“It’s very serious,” Bernard said in an interview. “When you think about having a trial that is fair and honest, those [58,000] citizens had a right to those [documents]. They had a right to know, and by not revealing this, I think this is an enormous problem.”

The motion sparked a swift response from the state’s district attorneys.

“After learning of issues regarding certain breathalyzer tests,” said Meghan Kelly, a spokeswoman for Middlesex District Attorney Marian Ryan, “the Massachusetts district attorneys will not offer any breathalyzer evidence in trials or plea negotiations until we receive information from OAT and have a full understanding of the nature and scope of the issue.”

A spokesman for the State Police, which oversees the Office of Alcohol Testing, declined to comment on the allegations.

“We generally do not comment on pending litigation, nor do we comment on specific evidence or motions related to an ongoing criminal prosecution,” David Procopio wrote in an e-mail. “The Office of Alcohol Testing fully embraces its responsibility to abide by the rules of discovery and will cooperate with the district attorney’s office and the court to address the matter at hand.”

In 2015, state officials said that only 150 of 39,000 breath analysis tests conducted since 2011 by police on suspected drunk drivers were flawed because of mistakes officers made calibrating the machines.

A state review found no evidence that the devices were not functioning properly.

But the lawyers say the state records they obtained indicate the devices may have been faulty and produced more widespread mistakes.

Bernard and four other lawyers were appointed to represent the 750 defendants and began conducting discovery hearings to learn more about the machines.

They received nearly 2,000 worksheets completed by state chemists who calibrated the machines. Nearly all of the worksheets showed the machines gave accurate readings, according to the motion.

But lawyers then learned of 400 additional tests that had no accompanying worksheets.

In a separate drunken-driving case this month, a chemist testified that a worksheet is filled out every time a chemist performs a calibration check on the machine.

In that case, three worksheets had not been disclosed to the court. When the judge ordered the state to hand them over, lawyers learned the worksheets documented that the machines showed flawed results, according to the motion.

Bernard said that case suggested that the 400 withheld worksheets likely showed the machines had calibration problems.

“They gave us just the information they wanted us to see,” said Thomas Workman, a lawyer who consulted with Bernard on the case and a forensic scientist who examined the worksheets.

“They had an obligation to provide it, and they withheld it. I don’t see how it can be an accident.”

In terms of the number of defendants affected, the breathalyzer case could have broader implications than the Annie Dookhan case, Workman said.

The actions of Dookhan, a former state chemist who was convicted on two dozen charges of tampering with evidence and fabricating results in drug cases, led to the dismissal of more than 21,000 charges against defendants.

Bernard said he believes the Office of Alcohol Testing withheld the evidence, not the Middlesex prosecutors appointed to the case.

“The prosecutors in the case were all honorable, hard-working people and it’s my belief they didn’t know anything about this,” Bernard said.