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Judge allows police to resume using breath test evidence in drunken driving cases

In a two-pronged ruling, the judge also ordered the state to notify thousands of drivers their drunken driving convictions could be overturned because of unreliable machinery.
In a two-pronged ruling, the judge also ordered the state to notify thousands of drivers their drunken driving convictions could be overturned because of unreliable machinery.Susan Montoya Bryan/Associated Press/File/Associated Press

A judge has allowed law enforcement in Massachusetts to resume using breath test evidence in drunken-driving prosecutions and has also ordered the state to notify thousands of drivers that their convictions could be overturned because of unreliable machinery.

The two-pronged ruling issued by Concord District Court Judge Robert A. Brennan 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.

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

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The judge, during the long-running litigation, has 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.

Joseph D. Bernard, a Springfield lawyer heavily involved in the case, said Brennan’s ruling will affect an estimated 30,000 drivers. He said the end date for those potentially affected by the faulty calibrations depends on when an individual police department brings their machines to the OAT for fine-tuning.

“I think this is a success for every citizen who pays tax dollars,’’ Bernard said. “We deserve honesty, we deserve quality results . . . It’s transparent.”

He also 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 with the defense bar while a Suffolk assistant district attorney, said he expects those with a single drunken-driving conviction are most likely to launch an effort 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 office received its accreditation in the field of forensic calibration June 14.

“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.

An online portal has been created for the public, lawyers, and police to examine documents obtained during the litigation.

While the litigation was ongoing, prosecutors in eight counties suspended use of breathalyzer evidence in courts, but now they are expected to adopt the judge’s decision.


John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.