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Breath Tests Excluded in MA DUI Trials

You are here: Home / News / Breath Tests Excluded in MA DUI Trials

June 20, 2021 By Attorney Brian E. Simoneau

BreathalDistrict Attorneys across Massachusetts are not introducing breath test evidence in drunk driving trials due to apparent issues with certifications of the Draeger Alcotest 9510 breath test devices and the police officers who operate these machines. Apparently, some police officers have been allowed to perform evidentiary breath tests in MA DUI cases without having been properly certified to do so.

Also, the law requires that reports regarding breath tests and chemical test refusals be made under the penalties and pains of perjury. Some breathalyzers were transmitting reports which may not have been certified to be true and accurate under the penalty of perjury, as required by law.

The Massachusetts State Police Office of Alcohol Testing issued specific instructions for Cleaning and Operating the Draeger Alcotest 9510 breathalyzers and these instructions may not have been followed in many Operating Under the Influence cases.

When a breathalyzer test is being conducted, Personal Protective Equipment is required to be worn and at least 6 feet of distance is supposed to be maintained between the breathalyzer and anyone other than the defendant.

There are other specific guidelines that dictate how the breathalyzer is supposed to be cleaned. These instructions prohibit the use of alcohol-based products and specify only 2 detergents that are approved for use. Using other cleaning products may damage the breathalyzer. Compliance with these cleaning instructions is unknown.

New mouthpieces have been distributed to police departments throughout Massachusetts. These new breath test mouthpieces are equipped with one-way valves which prevent test subjects from inhaling through the breath hose.

Due to potential non-compliance with these breath test requirements, many district attorney’s offices have suspended the introduction of breath test evidence in DUI cases. Without this key evidence, prosecutors may have difficulty obtaining operating under the influence convictions and they may be more receptive to plea bargains which can avoid jail time and potential license suspension consequences.

Filed Under: News

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