Breathalyzer results still aren’t being used as evidence in Massachusetts’ courtrooms and the 22News I-Team discovered, some defense attorneys are fighting to keep it that way.
The Department of Public Safety determined last October that the Office of Alcohol Testing intentionally withheld documents from defense attorneys in OUI cases.
Defense attorneys say some of those documents showed breathalyzer machines had failed annual inspections, and may not have been properly calibrated.
As a result, prosecutors agreed not to use evidence from breath tests in court cases between 2011 and 2017.
Attorney Joseph Bernard of Springfield is now asking the court to extend that window even further. “The most important piece of this breath test machine is how it’s calibrated. What we discovered is the calibration protocol or recipe so to speak of how to calibrate the machine was never validated. So they came up with a protocol, but it was never tested. So without a valid test of the protocol we don’t know if it works or it doesn’t work.”
The Suffolk County DA’s office told the I-Team the calibration protocol has been validated. They sent the I-Team the following statement:
The office used something called a performance check to validate the calibration protocol. There is no question of the protocols’ validity; the issue was with OAT personnel not disclosing calibration worksheets. The devices are definitely working properly now, and have always been working properly.
You can find out what Attorney Bernard wants to see happen before breath tests can be used as evidence again, and how soon a judge could make a decision on this case Thursday, December 13th, on 22News starting at 5.