SPRINGFIELD, Mass. (WWLP) – The 22News I-Team has learned that breath tests can once again be used as evidence in DUI cases. But, a Springfield attorney says a new software program in those breathalyzers could impact results.
On Monday, Judge Robert Brennan ruled that results from the Draeger Alcotest 9510 breathalyzers can be used as evidence in DUI cases again.
“The November 15, 2021 Order suspending use of Draeger Alcotest 9510 breathalyzer test results in criminal prosecutions is VACATED,” according to the ruling by Judge Brennan.
Also on Monday, Springfield Attorney Joseph Bernard, who represents the defendants in this class action lawsuit against the Commonwealth, told the 22News I-Team that the state’s Office of Alcohol Testing (OAT) implemented a new software program that could impact breath test results. The OAT, which is the state crime laboratory responsible for maintaining breathalyzers, implemented the new software program and failed to tell the prosecution, the defense or Judge Brennan.
Atorney Bernard told the 22News I-Team this is “disastrous” because someone could submit the same breath sample but because of the change in the software, the machines could produce a different breath test result.
“Our experts are raising serious concerns that it is possible that a citizen that submits a breath sample in a machine that has not used the new software program could produce a different measurement of alcohol concentration from a machine that has used the new software,” said Bernard.
The 22News I-Team first told you about the legal battle in 2017, after public safety investigators discovered the OAT withheld hundreds of documents that proved breathalyzer machines had failed annual inspections, and might not have been properly calibrated. The state had detected a number of tests using that machine were flawed.
“The Office of Alcohol Testing is in a fear based decision-making mode and it is destroying the public trust and confidence in the system while wasting valuable resources,” Bernard said in a news release. “The calibration laboratory needs to stand up and provide truthful, accurate and thorough information. They need to be completely transparent. Hiding and putting their heads in the sand has caused the entire state far too many problems. The lab needs be shut down until we have mechanisms in place to ensure that OAT is being transparent in the judicial process.”
In Judge Brennan’s ruling he states, “This Court remains satisfied that the public can have full confidence in the results produced by the Alcotest 9510. Whether OAT, the agency that deploys and maintains this device in the Commonwealth, can achieve a level of transparency, communication, competence, and trust with all in the legal community and thereby inspire public confidence in this aspect of the criminal justice system remains an open question that will be addressed in a further hearing as ordered by the Court.”
Attorney Bernard wants the courts to rely on field sobriety tests and police observations instead of breath test results until the breathalyzer machines are sorted out.
The 22News I-Team contacted the Executive Office of Public Safety and Security, which oversees the OAT. A spokesperson said that they do not comment on pending litigation.