PinMachines are only as good as the people who operate them. Even as technology advances and human-machine interaction decreases, problems continue to arise. The same is true for the breathalyzer machine. In March and April of 2015, prosecutors in Massachusetts were forced to reject breathalyzer results due to a “miscalibration” of the machine by police operators. This wreaked havoc in the court system, even if only for a short period of time. The investigation into the nature of the problem satisfied some but angered others, as described more fully below. With this story in mind, it is our hope that experienced DWI attorneys in Minnesota can learn from this recent experience in Massachusetts, as it casts doubt on the validity of this seemingly flawless machine.

In April of 2015, the Massachusetts State Police, who operate the state-wide computer system that calibrates, records, and provides the source code for each breathalyzer machine in the state, was forced to review every one of the 39,000 breath tests administered by police, according to a report issued by the Boston Globe. In March of 2015, state police brought this to the attention of a number of prosecuting attorneys in some of their current and previously adjudicated cases. This disclosure compelled district attorneys in Massachusetts to formulate a plan to prevent inaccurate results from being entered into evidence at trial. In fact, some district attorneys ordered their prosecutors not to offer any breathalyzer results into evidence whatsoever. Others took a more measured approach and made decisions on a case-by-case basis. In light of the foregoing, Massachusetts Secretary of the Executive Office of Public Safety and Security, who oversees the Massachusetts State Police, scrambled to find the answer. It was then decided that an immediate investigation of the issue must begin, which found that operator error in calibrating the breathalyzer machines (Massachusetts uses the Draeger 9510 statewide) resulted in fewer than 150 inaccurate results. The State Police were quick to point out that the machines as a whole function as intended.

While prosecutors remain on the watch for inaccurate results, others called for a more thorough and independent review of the situation. Specifically, the Massachusetts Bar Association formally requested Massachusetts Attorney General Maura Healey to commission a more extensive analysis. The Bar Association reasoned that the inaccurate results called into question whether each defendant was receiving the fair trial guaranteed to each criminal defendant by the United States Constitution.

This is not the only instance in which the accuracy of breathalyzer results were successfully questioned.  For instance, between 2009 and 2010, the Philadelphia police used breathalyzer machines that were miscalibrated, yet left those machines in service knowing that the readings were inaccurate. This affected almost 1,500 litigants and took nearly four years to resolve, the process of which was at the great expense of taxpayers. Additionally, police in Allegheny, PA forged results in the breath test log. This resulted in the local district attorney dismissing numerous cases. There was similar police misconduct in Phoenix, AZ causing false breathalyzer results to be published.

These few examples serve as a testament to the need for the accused to seek the experienced representation of counsel, who can challenge these tests and other aspects of one’s DUI case.