SALEM — Just weeks after a judge again suspended the use of breath test results in drunken driving trials in Massachusetts over concerns that state officials had not notified prosecutors or lawyers of changes to the equipment, another change is leading some lawyers to again ask that the machines be scrapped entirely.
In a statement released Monday, the lead attorney for a group of lawyers challenging the reliability of the breath test equipment used by every police department in the state, raised “serious concerns” that some machines have recently been updated with new software that could produce a different result than a machine that is using the older software.
And the attorney said that the update was not immediately disclosed despite a court order requiring the state to provide such information.
It’s the latest issue to come up with the machines, the Draeger Alcotest 9510, first purchased by the state in 2011. Questions about the machines have been raised repeatedly since 2015, when their use was first suspended after it was learned they had been calibrated to a wider margin of error than the state required. It was subsequently learned that the new technology used by the machines had never been vetted by a judge, following a hearing.
More recently, last November, Judge Robert Brennan suspended the use of breath test evidence at trials after learning that the state Office of Alcohol Testing had failed to notify anyone of a new mouthpiece design and was allowing uncertified operators to submit results.
That issue was awaiting a hearing when the new software was discovered.
A Springfield defense attorney who has led an ongoing challenge to the reliability of alcohol breath test devices used across the state says the state lab responsible for oversight of the machines has again withheld important information.
Joseph Bernard said that the state Office of Alcohol Testing “sat on critical information, silently keeping it from prosecutors, defense counsel, and Judge Brennan.”
“It is inconceivable that this information was not brought forth to the court and the parties’ consideration,” said Bernard in a statement. “Characterizing the current state of affairs as ‘disastrous’ might be an understatement.”
Bernard said he and other lawyers representing drunk driving defendants in a consolidated challenge to the Draeger breath test machines say that the lab recently began updating software on the devices.
Experts working for the defense believe that the update “changes the source code and calibration of the machines and may directly impact the reported breath test results.”
Bernard said the development is the latest example of a culture at the OAT that lacks transparency.
“Now, in the middle of the litigation, OAT had possession of extremely consequential information,” Bernard said. “OAT sat silently on the sidelines permitting the parties and the judicial process to spin their wheels wasting valuable time and resources.”
Bernard has asked Brennan to schedule a hearing on the new software as soon as possible.
But he is also suggesting that it’s time for the state to scrap the devices altogether.
Courts reporter Julie Manganis can be reached at 978-338-2521, by email at firstname.lastname@example.org or on Twitter at @SNJulieManganis