DA suspends use of breathalyzer test in court

Test results will not be used to prosecute Martha’s Vineyard cases until doubts about testing procedures are resolved.

Officer Josh Little stands beside a calibrated breathalyzer machine at the Dukes County Jail and House of Correction in Edgartown. — Photo by Michael Cummo

Updated 7 pm, Tuesday, April 28

Prosecutors seeking a conviction of drivers arrested for drunk driving on Martha’s Vineyard have one less weapon in their arsenal, at least temporarily, until questions are resolved about the accuracy of breathalyzer tests used across the state.

Massachusetts law sets the maximum legal concentration of alcohol in the bloodstream (BAC) for an adult operating a motor vehicle at 0.08. For a minor under the age of 21, this limit is 0.02. The breathalyzer machine measures the amount of alcohol in an individual’s blood.

The issue, according to published reports, is that the machines may not have been calibrated to the degree of accuracy state law requires. The state Executive Office of Public Safety and Security recently began a probe into testing procedures.

Last week, state officials had so far identified 69 faulty cases out of about 6,000, according to reports in the Boston Globe and Boston Herald.

State Public Safety Secretary Dan Bennett on Tuesday said his office was working with district attorneys to identify each individual in 150 cases involving breath tests affected by operator error.

After reviewing about 39,000 breath test results, Mr. Bennett’s office reported it “found no evidence that breath test instruments in use in the Commonwealth are functioning improperly.” Mr. Bennett also said a breath test manufacturer has agreed to update the instruments with a software patch that will reduce the potential for operator error.

Last week, prosecutors across the state, including Cape & Islands District Attorney Michael O’Keefe, suspended use of the test results in court until a statewide review is completed.

“In March we learned from the Office of Alcohol Testing of an issue with some breathalyzer tests,” Mr. O’Keefe said in a statement emailed to The Times. “As a result we have had several meetings to ascertain the nature of the problem and are awaiting further information. In the meantime, I have instructed our Assistant District Attorneys to refrain from introducing the breath test in any case and to so inform defense counsel until we receive further information from the Executive Office of Public Safety. At the same time police have been advised that they should continue to offer the test but to take care to follow the protocols set forth in the Code of Massachusetts Regulations respecting alcohol testing devices.”

In most cases, an individual arrested for drunk driving is transported to the Dukes County Jail in Edgartown where he or she may be administered a breathalyzer test. A failure to agree to be tested carries an automatic 180-day license suspension.

Dukes County Sheriff Michael McCormack said the breathalyzer machine used in the jail was recently sent off-Island for a total scheduled rehaul and examination by the Office of Alcohol testing. “As far as I know it is functioning as it should,” Sheriff McCormack said.

A glance at the court report published weekly in The Times reveals that arrests for operating a vehicle under the influence (OUI) are commonplace on Martha’s Vineyard. In 2014, the six Island police departments reported approximately 160 OUI arrests. Tisbury, Oak Bluffs, and Edgartown accounted for the majority.

The immediate ramifications are that police may see some cases they thought would result in successful prosecutions get tossed out of court, or have earlier cases that did end with a conviction be reversed. However, there will be no change in the effort to stop drivers who may be operating a vehicle under the influence of alcohol.

“We will continue to do what we do,” Oak Bluffs Police Lieut. Tim Williamson told The Times. “It really does not affect the police or how we work in the field.”

Lieutenant Williamson said officers would continue to administer field sobriety tests, and drivers would have the option of taking a breathalyzer test or lose the right to operate a motor vehicle. The prosecutors will continue to be responsible for seeking a successful conviction, Lieutenant Williamson said.

Per se proof

Robert Moriarty, a lawyer at the Edgartown firm of McCarron, Murphy, Vukota, told The Times he was pleased by the quick response of state law enforcement officials to the news that the machines may not be properly calibrated.

“I think [Cape & Islands District Attorney] Michael O’Keefe and the other district attorneys that have chosen not to proceed to introduce the breathalyzer into evidence are doing the right and just thing as fair and ethical prosecutors,” Mr. Moriarty said.

Mr. Moriarty said their decision is based on the disclosure that the test results are unreliable.

Mr. Moriarty explained the significance of the breathalyzer test. In the past, test results were viewed solely as evidence. Following a 2003 change in the law, the test result was “per se” proof of guilt. That assumption was all based on the belief that the test results were accurate to the degree spelled out in Massachusetts law.

A failure to take a breathalyzer tests carries a 180-day license suspension on a first offense. There is an option to go to court and contest the results of the field sobriety test. For a driver over the age of 21, a conviction on a failed breath test carries a 30-day license suspension.

Mr. Moriarty said the system is set up to incentivise a driver to opt for the breath test even if he or she thinks they may not be over the limit.

Before the test used to be just evidence, now it is actual per se proof of guilt, Mr. Moriarty said. Because the recent disclosures call into question the reliability of the test results, the entire system is now called into question.

Asked how he is proceeding in light of recent disclosures, Mr. Moriarty said he is proceeding to trial on every case that relies on the results of a breathalyzer.

The Massachusetts Bar Association (MBA) has called on Attorney General Maura Healey to launch an independent probe.

“Drunk driving is a serious societal issue which the Massachusetts Bar Association takes very seriously,” Martin W. Healy, MBA chief legal counsel and chief operating officer, said in a statement emailed to The Times. “But from a legal perspective, there has been a longstanding underlying problem with breathalyzer tests and their reliability. We’ve been questioning the use of these machines and the calibration of these machines for many years. The attorney general should step in and appoint an investigator, outside of the law enforcement community, to conduct an independent investigation so that we can have a fresh review of what’s been happening with these machines, and why many district attorneys throughout the commonwealth are now suspending the use of breathalyzer evidence in court.”

In a letter to the attorney general, Mr. Healy suggested that former judges or “seasoned attorneys” with no stake in the outcome of the investigation should be considered to lead the probe.

The association “remains concerned about the issue despite claims by some in the law enforcement community that the issue is one confined to human error in the calibration of the machines,” Mr. Healy wrote.