Nearly eight years of breath test results cannot be used in drunk

The state's highest court ruled Wednesday that alcohol tests given in Massachusetts between June 2011 and April 2019 with a type of breath test machine that periodically malfunctioned cannot be used in drunk-driving prosecutions, throwing roughly 27,000 OUI convictions into question.

While the Supreme Judicial Court's ruling brings a protracted legal saga over the breath machine to a close, it does not mean those cases will be automatically dismissed. Instead, individuals will have to request a new trial, as many already have since 2020, when county prosecutors agreed to notify them of their ability to request a new trial due to problems with the device, the Alcotest 9510.

The court's decision came in response to a Beverly woman's appeal to have her admission to an OUI charge in 2013 withdrawn.

As early as 2011, State Police were using breath tests on people that returned inaccurate results, Justice Frank M. Gaziano wrote in his 46-page ruling. In response to a lawsuit, State Police were required to turn over nearly 2,000 worksheets that documented the effectiveness of the tests. While initially only 11 of the worksheets indicated a "failed calibration," Gaziano wrote, a 2017 investigation revealed that State Police "intentionally withheld an additional 432 worksheets that reported failures in the annual calibration process" without telling prosecutors, defense lawyers, or the judge in the case.

That misconduct "resulted in the violation of the right to due process for approximately 27,000 defendants" who can seek new trials, Gaziano said in the court ruling.

In addition, any breath test conducted between June 1, 2011, and April 18, 2019, using the Alcotest 9510 device "must be excluded in any pending or future prosecutions."

District attorneys’ offices in Massachusetts say they are prepared to handle any incoming appeals, as every office established a system for reviewing these appeals in 2020 after acknowledging the misconduct by State Police was severe enough to notify defendants they could request a new trial.

Joe Bernard, a defense attorney who has represented many of the defendants in the class-action suit since 2015, said in an interview that the SJC's decision was a "legitimizing stamp of approval" on the changes already made by the state to address the misconduct that lasted for more than seven years.

"Our office is ecstatic with this decision knowing that there now has been a light shed on the lack of transparency from" the Office of Alcohol Testing, he added in a statement. "Impacted individuals, previously notified by the Commonwealth of the potential to vacate their conviction or plea in an OUI case based upon a scientifically unreliable breath test result, now face one less hurdle in doing so."

David Procopio, a State Police spokesperson, said that the agency is reviewing the decision, and that the office has implemented "significant operational improvements" in recent years to ensure that machinery is properly certified and staff are appropriately trained.

"It is important to note that the [Office of Alcohol Testing] operating procedures described in today's decision predate those numerous and substantial reforms," he said in a statement.

Unlike its decision involving thousands of defendants in drug cases tainted by the misconduct of two former state chemists, the court in this case did not require all of the relevant OUI convictions to be automatically dismissed, because it is possible for someone to be convicted of drunk driving without a breath test using other methods such as field sobriety tests, statements by drivers, or police observations.

Still, Mary Kate DePamphilis, program director for the state chapter of Mothers Against Drunk Driving, said the court's ruling is concerning.

"MADD is disappointed to learn that thousands of drunk driving cases will [potentially] be thrown out at a time when drunk driving deaths on US roads are increasing at historic levels," DePamphilis said. "Drunk driving kills someone every 39 minutes, leaving families and communities shattered by a violent, 100 percent preventable crime."

Bernard said the type of people likely to make an appeal are those who pleaded guilty solely because of the breath test result, rather than people whose conduct or condition blatantly pointed to intoxication.

"If there's overwhelming evidence of intoxication above and beyond the breath test, it's those cases and only those cases that won't be overturned," he said. "But I would say 90 percent of those [27,000] people will tell you they pled guilty because of the breath test . . . and so they get another chance at their case."

Although cases were distributed across the state, Bernard said that Hampden County had the largest percentage of affected defendants.

Several district attorneys’ offices, including Worcester, Norfolk, Essex, and Hampden counties, told the Globe that all affected defendants had already received letters, and that their offices will continue reviewing additional requests for a new trial.

"We’ve had a framework in place to address things as they come in, and [already] agreed to a majority of the motions on a case-by-case basis," said David Traub, spokesman for the Norfolk district attorney's office. Wednesday's decision, he added, "does not change how these cases will be addressed."

Prosecutors in other counties, including Suffolk and the Cape and Islands, said the number of new appeals they receive will determine whether they will continue to review appeals on an individual basis, or adopt a new approach.

"We are reviewing the SJC decision and will determine the proper course of action on applicable prior and existing cases, if any, that reflects and conforms with the ruling," said Jim Borghesani, spokesperson for the Suffolk district attorney's office.

The high court's ruling will help defendants by eliminating one of the prongs required to win a motion for a new trial.

"Requiring tens of thousands of defendants to bear the cost of proving that OAT's conduct was egregiously impermissible would be antithetical to our responsibility to ensure the efficient administration of justice," Gaziano wrote.

The court's ruling was applauded by both the American Civil Liberties Union and the Committee for Public Counsel Services, the state's public defender agency.

The chief counsel of the public defenders office, Anthony Benedetti, praised the court's ruling as "a victory for the thousands of people who have been living with tainted convictions, and for those who believe the government should be accountable for its actions."

Ivy Scott can be reached at [email protected]. Follow her on Twitter @itsivyscott. Travis Andersen can be reached at [email protected].