“These machines routinely have problems. Officers don’t administer them properly. They shouldn’t be looked at as the gold standard.”
Just over a year after a state judge ruled that the results of Alcotest 9150 breathalyzers were once again acceptable as court evidence, Massachusetts State Police (MSP) are apparently still submitting incomplete test results to the Registry of Motor Vehicles (RMV).
The Alcotest, which is the state’s preferred breathalyzer device, is used during traffic stops to measure a driver’s blood alcohol concentration from the vapor in the driver’s breath. In order for results to be admissible in court, the machines must be precisely calibrated—a standard by which MSP has stumbled over.
Kristen Sullivan, director of the Massachusetts State Police Crime Laboratory, sent out a letter, which was obtained by DigBoston, to the state’s county-wide district attorney offices, bar associations, and the Department of Transportation on June 10, reporting that the RMV had received a report for a breath test refusal in which an officer failed to include information required by state law, rendering the report legally invalid. Arresting officers must include their name and affirm “under penalty and pain of perjury” that they properly completed the breath test on the suspected drunk driver.
A subsequent review of reports going back to April, 2019 found that 44 refusal reports and 26 completed breath tests were submitted to the RMV without the confirmation fields. The state’s Office of Alcohol Testing then went further back to 2011, and the total of improper reports jumped to 231 refusal tests and 204 completed breath tests, according to the internal letter.
Refusing a breathalyzer test can cost a driver their license for at least 180 days. A second traffic stop with another refused test results in a three-year suspension.
The state has only recently been allowed to continue using Alcotest results after a ruling from Judge Robert Brennan out of Salem District Court three years ago. A group of more than 500 drivers who improperly lost their licenses fought against the validity of the tests in 2017 in Commonwealth v. Ananias. Brennan found that the MSP failed to properly calibrate its breathalyzer devices, resulting in all breath test results from 2011-2017 to be deemed unacceptable for court.
Brennan further ruled, in 2019, that the state would have to obtain accreditation from the American National Standards Institute, retrain police officers on the use of the Alcotest, and make the state’s accreditation certificate and subsequent breath test reports more accessible for court discovery.
The judge finally allowed the state to resume use of the Alcotest in April 2019.
“A lot of people think that breath test information is infallible,” attorney Michael Delsignore said. “These machines routinely have problems in maintenance. Officers don’t administer them properly. They shouldn’t be looked at as the gold standard of evidence.”
Delsignore said that he has been advocating for the state to require ink signatures on Alcotest reports to ensure that they are being properly completed.
“It’s clear from this problem that no one really pays attention to these reports,” the attorney said. “They get submitted without them being filled out properly.”
Attorney Joseph Bernard was lead counsel on Commonwealth v. Ananias, which challenged the legitimacy of the Alcotest 9150 and resulted in the temporary halt of the device for use in criminal trials. Bernard was not surprised when he learned of the new problems with the device.
“Here we go again,” Bernard said. “Time and time again this particular machine has shown issues and problems providing reliable results.”
Bernard explained that breathalyzer tests are often inaccurate because they can easily be tainted by how recently a person has had anything to drink.
“If you take Jack Daniels or beer and swish it in your mouth, you’ll have raw molecules in your mouth,” Bernard said. “Police officers watch for burping, belching or vomiting, because you’re introducing raw molecules into the mouth.”
Bernard said that he is hoping that the Commonwealth catches up with the large number of states that have switched to using blood tests to determine levels of intoxication.
“What’s happening across the country, breath test machines are becoming obsolete,” Bernard added. “This is the dinosaur way of measuring blood alcohol concentration.”
Despite the letter from the director of the MSP crime lab specifically identifying that the devices were transmitting data to the RMV when the test reports were incomplete, a Dräger spokesperson denied that the state had found any errors in the device.
“Rather, the issue discovered appears to relate to factors or systems wholly separate and apart from the Alcotest 9510 device or its functionality, and has nothing to do with the device itself,” the company rep wrote in an email. “The instrument is functioning as expected and as intended.”
In follow-up correspondence, the spokesperson clarified that the device deliberately transmits information to the Commonwealth’s IT data system. Whether or not that data is then transmitted to the RMV is not Dräger’s responsibility.
“Questions related to that process should be posed to those agencies,” they wrote. “Dräger does not design or maintain such IT systems.”
The state police’s media office failed to respond to multiple calls and emailed requests for comment.