Cape & Islands DA lifts breathalyzer evidence embargo

Issue reportedly lies in human error, not device malfunction

Cape & Islands District Attorney Michael O'Keefe announced Tuesday that he would be lifting the embargo on breathalyzer evidence in the next few days. Last week, several district attorneys across the commonwealth, including O'Keefe, announced they would refrain from introducing breath test results as evidence in light of a disclosure from the state Office of Alcohol Testing regarding the accuracy of certain tests.

Last week the Massachusetts Bar Association also called for an independent investigation to be conducted by the State Attorney General's Office. On Tuesday, District Attorney O'Keefe spoke with Executive Office of Public Safety and Security Secretary Bennett and confirmed that the issue has been described as "human error in the reading of breath test results".

Approximately ten cases have been impacted on Cape Cod and  the Islands. Six of the cases, one in Yarmouth and five in Martha' Vineyard, have already been processed, according to the DA. The defense attorneys on those cases will be notified and given the option to enter a motion for a retrial. The cases that have yet to be tried will be "handled consistent with the interests of justice", a release from the DA's office said.

For more information, read the State House News Service story below.

Bar seeks breathlyzer probe, Bennett defends use of tests

by Michael Norton, SHNS

Citing the suspension of breathalyzer tests by some county prosecutors, the Massachusetts Bar Association on Tuesday asked Attorney General Maura Healey to appoint an independent investigator to conduct a review of the use of the machines in drunk driving cases.

"We believe drunk driving is a very serious problem, however convictions need to be based on reliable and accurate evidence. The constitutional right to a fair trial has to be paramount," association chief operating officer Martin Healy wrote in a letter to Healey.

State Public Safety Secretary Dan Bennett on Tuesday said his office was working with district attorneys to identify each individual in 150 cases involving breath tests affected by operator error.

After reviewing about 39,000 breath test results, Bennett's office reported it "found no evidence that breath test instruments in use in the Commonwealth are functioning improperly." Bennett also said a breath test manufacturer has agreed to update the instruments with a software patch that will reduce the potential for operator error.

In his letter to the attorney general, Healy suggested that former judges or "seasoned attorneys" with no stake in the outcome of the investigation should be considered to lead the probe.

The association "remains concerned about the issue despite claims by some in the law enforcement community that the issue is one confined to human error in the calibration of the machines," Healy wrote.

Middlesex District Attorney Marian Ryan on April 22 instructed her office to suspend the use of breath tests results in drunk driving cases "until further notice," citing issues with the tests and State Police concerns "that the problem may go beyond" isolated cases.

Ryan said she was notified in mid-March by the Office of Alcohol Testing "that there was an issue with breath tests given to several identified defendants in Middlesex County." She notified defense attorneys in those cases and met with State Police on April 15.

 


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