Massachusetts judge rules to permit breath-tests in DUI cases

On Behalf of | Jan 27, 2022 | Criminal Defense |

A Massachusetts District Court judge handed down a ruling on Jan. 10 that will allow law enforcement agencies in the state to once again use a controversial breath-testing device in drunk driving cases. Use of the Draeger Alcotest 9510 was suspended in November 2021 after an investigation raised questions about the accuracy of the device and the way it was being used. Investigators discovered that hundreds of documents that revealed the machines are often improperly calibrated and frequently fail inspections had been withheld by the Office of Alcohol Testing.

DUI cases dismissed

As a result of that ruling, all breath tests administered using the Draeger Alcotest 9510 between June 2011 and April 2019 were excluded in drunk driving prosecutions. The Jan. 10 ruling vacates that order. It is unclear how the latest ruling will impact DUI prosecutions in the commonwealth as questions about the reliability of breath tests prompted several district attorneys to stop using this kind of evidence long before the courts required them to do so.

New software

When he made his ruling, the judge said that Massachusetts residents should have “full confidence” in the machines. An attorney representing a class of plaintiffs who were convicted because of questionable breath tests does not share this sentiment. He points out that the OAT recently changed the software that the Draeger Alcotest 9510 uses to measure blood alcohol concentrations without informing prosecutors, defense attorneys or the courts. He says the agency chose to post the information on an obscure part of its website instead.

Reasonable doubt

Changing software and improving transparency at the OAT may not be enough to rescue the Draeger Alcotest 9510’s reputation. Guilt in DUI cases must be proved beyond reasonable doubt, which could be a very difficult standard for prosecutors to meet when their primary evidence consists of forensic data that has been shrouded in controversy for a decade.


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