Judge Rules that Breath Tests Results Cannot Currently Be Admitted – What These Means for OUI Defendants

Background

In 2011, Massachusetts police departments began using the Draeger 9510 breathalyzer machine to measure the blood alcohol content (“BAC”) of people arrested for drunk driving. At that time, the results of these tests were admissible against OUI defendants at trial. This was particularly important, as evidence of a BAC of .08% or above, meant that the prosecutors could argue that a defendant was guilty of OUI per se, based only on the BAC, and without offering further evidence that a defendant’s driving was impaired.

In 2015, the reliability of the Draeger 9510 became the subject of litigation. OUI defense attorneys argued that the Draeger 9510’s results were not scientifically reliable and thus not admissible in court. During the pendency of this litigation most prosecutors stopped using breath test evidence against defendants.

In February of 2017, Judge Robert Brennan ordered that breath test evidence from machines calibrated between June 2012 and September 2014 should be excluded because of a lack of scientific methodology employed by the Office of Alcohol Testing (“OAT”), the agency responsible for calibrating and approving breath tests.

In August of 2017, information was exposed that OAT had withheld information that could have further called into question the reliability of the breath testing. An inspection of OAT practices by the Massachusetts Executive Office of Public Safety and Security confirmed that OAT procedures were deficient in providing the legally required information to prosecutors and OUI defendants. As a result, the director of OAT resigned, and the litigation surrounding the Draeger 9510 was resurrected.

New Decision

On January 9, 2019, Judge Brennan made a new ruling regarding the admissibility of the results of Draeger 9510 breath test results. Judge Brennan ruled that all Draeger 9510 results remain inadmissible at court, until the time that OAT can show that it is substantially likely to earn accreditation as a lab from the ANSI-ASQ National Accreditation Board. Until this time, prosecutors will not be using any breathalyzer results in the prosecution of OUI defendants, except for certain serious cases such as motor vehicle homicide by OUI, OUI causing serious bodily injury or 5th or subsequent OUIs.

What this Means

For most people charged with OUI, this means that the Commonwealth will be limited in their ability to use breath test results against you. Instead, prosecutors will use police observations, field sobriety tests, and other evidence to prove that you were too impaired to operate a vehicle. Failed Breath Test results can still be used to suspend your driver’s license, or for other administrative purposes. Moreover, breath tests will still be administered during arrests, and the results may be used by prosecutors and judges in determining how to handle your case. Therefore, the lack of breath test evidence does not mean that your current OUI charge will go away, or be any easier.

Additionally, if you were convicted of, admitted to, or plead guilty of OUI in the past, it may be possible that the new ruling will affect this prior OUI. Specifically, if the OUI was based on the use of breath test evidence from a Draeger 9510, you may be able to have this OUI vacated. Talk to an OUI attorney familiar with the current state of the law to determine if your past OUI could be vacated.

If you are currently charged with an OUI you will likely be prosecuted, with or without the use of breath test evidence. Hiring an experienced OUI attorney remains important in order to best defend against an OUI charge. Contact an OUI lawyer today for a free consultation and to discuss the specific circumstances of your case.