Several district attorneys, including those in Middlesex and Essex counties, have announced that they are suspending the use of Breathalyzer results in pending operating under the influence of alcohol cases after it was discovered that some of the machines have been giving inaccurate readings.
The Breathalyzer is a machine that can allegedly determine the blood alcohol content (BAC) of the person who provides a sample. Someone who is suspected of drunk driving is asked to blow for several seconds into the machine, which measures the air found deep in the subject’s lungs. The machine then spits out a ticket that purports to prove the level of alcohol in the individual’s blood. In Massachusetts, a reading of .08 or higher is a per se violation of the OUI statute. Therefore, if the jury believes the reading is accurate, the defendant is convicted of operating under the influence of alcohol.
According to multiple media outlets, the State Police told prosecutors last month that there are concerns about the reliability of the test. State officials are predictably being cagey about what exactly is wrong with the machines, saying only that an investigation is under way and initial review suggests that only about one percent of cases involving Breathalyzers appear to be affected. Meanwhile, some prosecutors will not present Breathalyzer readings to juries until the investigation is complete, which is obviously the right thing to do.
For years, defense attorneys have argued that Breathalyzer results constitute junk science. It is beyond dispute that outside factors can contribute to a false Breathalyzer reading. For example, an individual who burps or vomits, gargles with mouthwash, or puts any object in his mouth before giving a sample will likely produce an inaccurate result. In Massachusetts, there are regulations that try to prevent bogus readings. For example, police officers are supposed to watch subjects for 15 minutes before the administration of the test to make sure the subject does not put anything into his mouth that could affect the outcome. Additional problems with determining the reliability of the Breathalyzer is the manufacturer’s reluctance to produce the source code of the machine itself. The manufacturer claims that the source code is a trade secret. Therefore, defense attorneys are put in the position of trying to challenge the reliability of a machine without being allowed to know how the machine works.
It will be interesting to see how this problem is resolved. It is important that the investigation is not conducted by a law enforcement department which might be tempted to downplay the seriousness of the issues with the Breathalyzer. In order to preserve the public’s confidence in the process, the attorney general should appoint an independent investigator to examine the facts and determine the seriousness of the problem.
If unreliable readings have been consistently produced over an extended period of time, this situation could turn into a disaster for the criminal justice system. In addition to the defendants who lost at trial based on incorrect Breathalyzer readings, there are thousands of people who pled guilty to OUI charges based on the results of their Breathalyzer tests. Presumably, everyone who pled guilty based on erroneous Breathalyzer readings would be permitted to withdraw their guilty pleas and take their cases to trial.
While this story is still in its preliminary stages, if you have either been convicted of OUI or pled guilty to OUI based in part on a Breathalyzer reading, you should call Attorney Chris Spring immediately at (617) 513-9444 to discuss your options.