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Mass. DAs have stopped using breathalyzer tests as evidence. Charlie Baker’s administration says they’re still reliable.

"As prosecutors, we must have confidence in the integrity of the evidence we present in court."

A Massachusetts state trooper takes a suspected drunk driver into custody along Interstate 93. Aram Boghosian / The Boston Globe

By Nik DeCosta-Klipa

June 18, 2021

The majority of district attorneys in Massachusetts have stopped using breathalyzer tests in drunk driving cases, amid concerns about the devices’ reliability and use by uncertified operators.

However, Gov. Charlie Baker’s administration says the devices remain reliable.

“The breath test devices used in Massachusetts and the evidence they document remain reliable, and the results they produce remain valid,” Jake Wark, a spokesman for the Executive Office of Public Safety and Security, said in a statement Friday.

WBUR reported Thursday that at least seven of the state’s 11 district attorney offices have completely stopped using the tests as evidence, meaning they must rely on field sobriety tests or witness testimony in drunk driving cases. And several other offices are either limiting or closely scrutinizing the use of the tests.

The reason is rooted in issues with the state’s handling of the Dräger Alcotest 9510, the breathalyzer most commonly used in Massachusetts.

For years, the use of the devices has faced scrutiny, amid evidence that they were not properly calibrated, leading the state to exclude all breath tests administered in Massachusetts from use in criminal prosecutions between June 2011 and April 18, 2019, and opening the door for thousands to seek new trials.

More recently, lawyers have charged that the Massachusetts Office of Alcohol Testing used uncertified operators to administer the devices, undermining the admissibility of their results in court.

“As prosecutors, we must have confidence in the integrity of the evidence we present in court,” Suffolk Country District Attorney Rachel Rollins told WBUR.

State officials contend that the lack of certification didn’t affect the results of the tests.

In a letter to state’s DAs and the lawyers challenging the breathalyzer tests earlier this month, Massachusetts State Police officials said that, between 2016 and 2020, only 38 of the 8,000 officers who served as breath test operators were uncertified, and only due to failures to finish the two-part certification process within required time periods. According to the letter, all 38 operators did ultimately get re-certified, “despite not being in full compliance with OAT’s administrative time limits.”

“The fact that these [officers] did not complete both phases in a timely fashion had no material impact on their competency to administer breath tests, nor did it have any impact whatsoever on the reliability of the breath test instruments themselves,” said the June 8 letter from state police lawyer Jennifer Staples and crime lab director Kristen Sullivan.

Still, they said that 17 of those 38 officers administered a total of 78 breathalyzer tests, 53 of which were thrown out. Officials said they are notifying DAs’ offices about the other 19 tests.

According to the letter, OAT issued corrective action this past February to avoid any “similar oversights in the future.” The office additionally eliminated one of the time requirements that mandated officers finish both the practical and online portions of the recertification process within 30 days (that requirement has tripped up 15 of the 38 officers whose certifications lapsed). Now, they must simply finish the two-part process before their prior three-year recertification expires.