Breath tests can be used to prosecute OUI cases in MA again

BOSTON — Breath test results can now be used as evidence in Massachusetts drunk driving cases after the state's lab received national accreditation.

Beginning today, Massachusetts police can begin using breathalyzer results to prosecute OUI cases in court, according to a spokesperson from the Executive Office of Public Safety and Security. @boston25 pic.twitter.com/tSXI1kNLNa
— Jason Law (@JasonLawNews) July 30, 2019

The Office of Alcohol Testing (OAT) received its national accreditation earlier this summer and met the requirements set by Judge Robert Brennan, according to Jake Wark from the Executive Office of Public Safety & Security (EOPSS).

I just talked with EOPS spokesperson Felix Browne: Judge Brennan’s ruling says breathalyzer’s are admissible again after the Office of Alcohol Testing earned it’s national accreditation. @boston25 pic.twitter.com/X1aHGt1c5f
— Jason Law (@JasonLawNews) July 30, 2019

Judge Robert Brennan’s decision applies to breathalyzer evidence gathered by properly calibrated devices over the last three months, going back to April 18, 2019, Wark said.

This applies to three months of OUI cases going back to April 18, 2019.

Starting now, all that evidence will be admissible in court.

The “breath test” from a breathalyzer has not been used in court since Aug. 2017, according to @MassDUIattorney Michael DelSignore. @boston25 pic.twitter.com/E8hWU7ZBpX
— Jason Law (@JasonLawNews) July 30, 2019

Since August 2017, the "breath test" from a breathalyzer has not been used as evidence in OUI cases, according to OUI defense attorney Michael DiSignore.

Statement from @EOPSS regarding Judge Robert Brennan allowing breathalyzer results back in Massachusetts court. @boston25 @MassDUIattorney pic.twitter.com/MPw9Gww1oM
— Jason Law (@JasonLawNews) July 30, 2019

Judge Brennan ruled in Feb. 2017 that a lack of reliable standards set by the OAT for maintaining breathalyzers could jeopardize their use in a court of law.

Defense attorney Michael DelSignore points out all police departments still need to take their breathalyzer machines to the Office of Alcohol Testing to have them retested and certified. @MassDUIattorney @boston25
— Jason Law (@JasonLawNews) July 30, 2019

By the beginning of 2019, it is estimated prosecutors had thrown out evidence in tens of thousands of drunk driving cases and had agreed not to use breath tests as evidence in OUI cases -- with a few exceptions -- until the OAT had established and implemented specific regulations and guidelines for the machines.

So even if you get an OUI today, if the police department hasn’t had their machines retested by the OAT, the evidence may still be thrown out, DelSignore said. @MassDUIattorney @boston25
— Jason Law (@JasonLawNews) July 30, 2019

DiSignore says all police departments still need to take their breathalyzer machines to the Office of Alcohol Testing to have them retested and certified. DiSignore also points out that even if a driver is stopped for an OUI today, if the police department hasn't had their machines retested by the OAT, the evidence may still be thrown out.

In a statement, the Executive Office of Public Safety & Security told Boston 25 News:

"The Office of Alcohol Testing worked diligently to meet and even exceed the court's requirements, achieving accreditation months ahead of schedule. As a result, Massachusetts is one of a select number of states with an ANAB-accredited calibration lab to certify and calibrate its breath test devices. There is no question that OAT has both the technical expertise and the professional integrity to handle this responsibility, and we're pleased that the court reached the same conclusion in allowing breath test evidence back into the courtroom."

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