THERE IS NO QUESTION that for years, state breathalyzer tests were not certified correctly, and Massachusetts’ Office of Alcohol Testing acted egregiously when it withheld evidence about failed calibrations of breathalyzers. But what happens to all those drunk driving cases where breathalyzer evidence was used?
The Supreme Judicial Court on Wednesday heard arguments in a case that will decide how the courts should deal with approximately 27,000 drunk driving cases. Justices quizzed attorneys on whether they should dismiss every case or give every defendant an opportunity to seek a retrial. They questioned what should happen with the most serious cases, like motor vehicle homicide. They also analyzed the comparison with the notorious drug lab scandals, in which two chemists admitted to misconduct affecting drug evidence.
“Twenty-seven thousand defendants whose convictions or admissions rose in the shadow of government misconduct await this court’s decision to see if the right to fundamental fairness will be upheld,” said Murat Erkan, the attorney representing defendant Lindsay Hallinan, who pleaded guilty to drunk driving after failing a breath test.
The case arises from years of litigation over the use of a particular breathalyzer test, the Alcotest 9510. A judge ruled in 2017 that the methods used by the state’s Office of Alcohol Testing to certify the instruments between 2011 and 2014 did not produce scientifically reliable results. It was discovered later that year that the Office of Alcohol Testing, a branch of the State Police crime lab, had intentionally withheld documents showing failed calibration tests, despite a court order to produce them.
Prosecutors agreed to stop using these breathalyzer tests until the Office of Alcohol Testing improved its procedures, and the state notified 27,000 defendants that they may be able to reopen their cases.
Attorneys involved in this case have drawn parallels with the drug lab scandals, in which thousands of drug-related convictions were tossed by prosecutors after assistant attorneys general withheld relevant materials from the defense during litigation stemming from the chemists’ misconduct.
Justice Frank Gaziano, in questioning Assistant District Attorney David O’Sullivan, raised the comparison with the drug lab case, noting that in that case withheld evidence led to mass dismissals of convictions. In this case, he said, a report on misconduct by the Office of Alcohol Testing is “incredibly troubling, it makes your blood boil.”
“We have people purposefully hiding evidence from the defense counsel and prosecutors and the court,” Gaziano said, questioning why cases should not similarly be dismissed. Gaziano said the court has a role in making the penalty for misconduct harsh enough that it will deter future misconduct by state officials.
Justice David Lowy added, “What message are we sending to the public if we don’t dismiss [the convictions]?”
Justice Serge Georges suggested there would be a “level of arbitrariness” if each case were retried based primarily on police observation, and different judges gave different amounts of credibility to the police testimony.
O’Sullivan said the drug lab and breathalyzer situations are different. Without evidence that drugs were involved in a drug offense, prosecutors have no case. So throwing out evidence of faulty drug certifications necessarily dooms a conviction. For drunk driving cases, there are ways to prove drunk driving without breathalyzer evidence – for example, based on field sobriety tests, police observations, or admissions to drinking.
With the drug cases, O’Sullivan said, there was no way to determine which samples or tests were tampered with, so it had to be assumed that all tests were done improperly. In the case of the breathalyzers, documents have since been made public in a database tracing which machines failed calibration tests. So any individual defendant could find out whether the breathalyzer test used in their case was used properly.
Erkan did not ask for the dismissal of all drunk driving convictions during the time these tests were being used. But he asked that every case be given a presumption of government misconduct that could be used to reopen any convictions or pleas and have the cases retried without breathalyzer evidence.
Erkan said he thinks the court has authority to order all the cases dismissed, but there is a narrower remedy, by having the court determine in which cases there was a “reasonable probability” a person would not have pleaded guilty or been convicted without breathalyzer evidence. “It seemed to me…that the issue could be addressed by applying the reasonable probability test to these cases in a manner that balances the government’s interest in enforcing OUI laws with the public’s rights to transparency and fairness and due process,” Erkan said.
Erkan acknowledged that, unlike losing any evidence of drugs in a drug-related conviction, the lack of breathalyzer evidence “doesn’t defeat the prosecution, it just substantially weakens it.”
At the same time, attorneys and justices noted that the breathalyzer result is the strongest piece of evidence in most drunk driving cases. Breathalyzer evidence provides a “seal of scientific approval,” Erkan said. “It is the centerpiece of every OUI case. It’s the crown jewel, it’s the confession, it’s the fingerprint, it’s the DNA match.”
O’Sullivan said the state is not defending the conduct of the Office of Alcohol Testing. “The Commonwealth is not here to minimize or excuse the serious failings of OAT,” O’Sullivan said. But he said there has already been consequences, by excluding the use of breathalyzers as evidence and notifying 27,000 people that they could ask to have their cases reopened.
Asked by Justice Elspeth Cypher about the burden on the courts if every case has to be reconsidered individually, O’Sullivan said notifications already went out and “the court has not been overrun to date with motions.”
Georges suggested that part of the problem with case-by-case adjudications is that those defendants have to get a lawyer to relitigate their case. “Maybe they can’t afford it,” Georges said.
The lower court’s ruling limiting the use of breathalyzers had some exceptions for the most serious cases, like motor vehicle-related homicide or a fifth offense of drunk driving. In those cases, prosecutors could use breathalyzer test results as long as they proved that the breathalyzer in that case was calibrated correctly.
Justice Scott Kafker questioned whether any ruling applied by the SJC would also affect those more serious cases, many of which have a victim and resulted in serious bodily harm. “That’s a whole different ballgame,” Kafker said.