The Executive Office of Public Safety recently released a report detailing their investigation into 39,000 breath test results. The investigation started when questions arose regarding the calibration of the breathalyzer machines. The report found that in fewer than 150 cases, breath test personnel should have deemed the results to be invalid. Because of human error, the values were found to be outside the acceptable tolerance range set by Massachusetts’ regulations.

State regulations require that police calibrate the machines to operate in a range between 0.074 and 0.086, which is more stringent than the manufacturer routinely, sets for machines, the state said. When law enforcement started using an updated Draeger model in 2011, the state did not ask the company to calibrate the machines to Massachusetts’ unique standards. The company has since agreed to provide a software patch for the machines. This software patch will not however, correct the calibrations of the machines that were used from 2011 until now.

Because of “human error,” a number of counties have suspended the use of the Breathalyzer tests on the road and in the courtroom until the investigation is completed. Currently the list of counties suspending the results is as follows: Suffolk, Middlesex, Essex, Worcester, Norfolk, Plymouth, Franklin, Hampshire, Barnstable, Dukes and Nantucket.

“The Executive Office of Public Safety is currently working with the appropriate District Attorneys to identify each individual whose breath test was affected by operator error, so that we can ensure that the operator errors did not unfairly impact any OUI prosecutions; and so that prosecutions of those suspected of operating under the influence can go forward based on all of the available evidence, including breath tests.”

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While, currently the Executive Office of Public Safety states that less than 150 cases “should be deemed invalid” by the calibration error, many defense lawyers are skeptical. This is not the first time that the Commonwealth has claimed human error when “scientific evidence” produced by the Commonwealth has been brought into light. One only has to go back 2 years to the case of Annie Dookhan, the chemist at the Massachusetts crime lab who intentionally altered drug certifications that effected up to 34,000 cases.

Similar to the evidence regarding drugs, questions regarding the accuracy of the breath tests raise a lot of concerns regarding the finality of closed criminal matters involving OUI offenses.

Any case where the defendant was found guilty at a trial, where the jury considered scientific evidence, later shown to be false, the defendant would be entitled to a new trial. If this investigation results in a number of the breath test results being thrown out, the courts will be inundated with Motions for New Trials.

The investigation may also result in a number of Motions to Withdraw Pleas. In many OUI cases, defendants will take a plea deal when faced with the only alternative of going to trial up against the weight of a “scientific evidence” that their blood alcohol content was higher than .08%. If a defendant made a plea on a case where the Commonwealth offered evidence that has later been shown to be false, specifically so called scientific evidence, he may bring forth a motion to withdraw his plea.

However, simply showing that the calibration was off will not guarantee that the Judge will allow the defendant to withdraw his plea. When arguing the motion to withdraw his plea, the defense must show that the defendant would not have pled guilty if he had known the test results were invalid. This can be a problem if the weight of the evidence that the defendant was intoxicated while driving is still substantial even after the test is thrown out. A defendant who had made statements that he had been drinking, or had failed the field sobriety tests, or where there were witnesses or injured parties may run into some problems. Regardless of the circumstances, anyone who has been convicted of an OUI offense should reach out to their attorney to see if their case has been affected by this investigation.

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