DA lifts suspension of breathalyzer tests in court

A review of cases turned up six in which improperly calibrated machines may have led to incorrect results.

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Breathalyzer results will return to court.

In a press release issued Tuesday, Cape and Islands District Attorney Michael O’Keefe lifted the suspension put in place last month on the use of breathalyzer test results in court after the Executive Office of Public Safety and Security (EOPSS) determined that some machines might not have been calibrated to the degree of accuracy state law requires.

The problem was traced to operator error and machine programming.

“The EOPSS review revealed no basis to doubt the underlying science of breath testing, or the reliability or integrity of the Draeger 9510 breath test instrument,” Daniel Bennett, secretary of public safety, said in a letter dated May 4, addressed to district attorneys across the state. “Rather, what the review revealed were two types of operator error.”

Mr. Bennett said the manufacturer would be providing a software patch to assist operators. “Where the instruments have been properly calibrated, the readings produced by those instruments are accurate, reliable, and properly admissible in court pursuant to statute even without the software update,” he said.

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.

Mr. O’Keefe said a review of affected cases in the Cape and Islands District had determined there were only six, “and all have been dealt with.”

Mr. O’Keefe said, “I am lifting forthwith the embargo placed into effect during the pendency of this review regarding the offering of breathalyzer evidence to the court. This embargo was instituted to assure the integrity of evidence presented to the court.”