Opinions and Legal Insights

MA lab has revealed that Alcotest may have glitches in readings? What happens next?

The Office of Alcohol Testing (OAT) has now been involved in a scandal for several years for its inadequate testing and withholding of breathalyzer certifications relating to the Alcotest 9510 device. The Alcotest 9510 has been under scrutiny since 2017 when Draeger Safety Diagnostics, the manufacturer of the breathalyzers, called several thousand devices into question. The company admitted in court testimony that the device was improperly programmed, leading to incorrect values and affecting the accuracy of blood alcohol concentration (BAC) for OUI-related breath testing.

In Massachusetts, the maximum BAC if 0.08% for drivers over the age of 21 and 0.02% for drivers under the age of 21. In many cases, the driver’s punishment of a fine or even jail time is dependent on the number that appears on this little black box. As more than 1 million Americans are arrested for OUI each year, faulty breath testing is a huge issue in the state of Massachusetts, and everyone has an interest in guaranteeing that these tests are as accurate as possible.

The Alcotest 9510 uses two sensors to measure alcohol content in a driver’s breath: an infrared beam and an electrochemical fuel cell. The results of the two measurements should be almost identical, but if the results differ too much, the test should be rejected due to the potential for inaccurate readings. The issue with this device is that is does not shut down when values are too far apart, and inaccurate readings are instead treated as an indication of drugs or alcohol in the driver’s system. After an inspection of 400 machines in 2017, not a single machine was programmed correctly. Up to 20% were likely to produce false positive values for BAC, information which OAT was intentionally withholding. This means that the machine may display an illegal BAC reading when the driver is not actually over the legal limit.

In February 2017, the court ordered tests dating back to June 2011 be assumed inaccurate and excluded from evidence pending a demonstration on a case-by-case basis that the device was reliable. In January 2019, the court ordered that OAT comply with new standards and be on track for accreditation before this ban would be lifted. This presumptive exclusion was lifted on April 18, 2019, despite the fact that Draeger had not updated 90% of its machines. Breath tests can now be used as evidence for OUI charges in the Commonwealth, but the prosecution will have to demonstrate that the device used complied with OAT’s new standards.

New issues have surfaced recently. Kristen Sullivan the director of the State Police Crime Laboratory released a statement on June 10 revealing that over 400 breath-test or over-limit test results sent to the RMV had required sections left blank. On both types of reports, the sections included a certification that the officer preparing the report was the one that refusal was made to or who administered the test, as well as acknowledgement that the report was prepared under penalty of perjury. OAT found that 435 of these reports were incomplete or improper since the device went into service in 2011. Joseph D. Bernard, the lead attorney in the original case, has called for Gov. Charlie Baker to remove all devices from service until these inconsistencies can be resolved.

What does this mean for you?

An OUI conviction has a way of following you, marking your record for years to come. If you have been charged with an OUI, Altman & Altman LLP has a team that can help. We have spent over 50 years protecting the rights of those charged with criminal offenses. These findings give us incredible data to ensure that your rights were protected when you blew into that little black box. Nobody deserves to pay for a crime that was erroneously attributed to them. Contact Altman & Altman, LLP today for a free and confidential consultation about your case.