The short answer to this question is that, as of January 9, 2019, the breathalyzer tests are not admissible for most cases.  Exceptions to this exist only for OUI cases involving serious bodily injury or death and for cases charged as a 5th offense OUI or greater. For these cases, the Commonwealth of Massachusetts may seek to demonstrate the reliability of Office of Alcohol Testing (OAT) calibration and certification on a case-by-case basis in order to admit the breathalyzer results in evidence.  However, we can expect this to change, likely within the next year.  Continue reading to understand why this is happening.

The Court Cases

In January 2017, a hearing challenging the scientific reliability of the breathalyzer machines in use in Massachusetts began, in the consolidated litigation Commonwealth v. Ananias, et al.   Under the law, if the breathalyzer machine does not produce a scientifically reliable result it would not be admissible in court. One of the issues considered by the Court in this hearing was the defense challenge to the Office of Alcohol Testing’s (OAT) methods concerning “the calibration of an instrument performed by OAT prior to its initial deployment and during its annual certification.” The Court determined that this issue raises scientific methodology concerns regarding the testing.

The Court determined that all tests performed between June 2012 and September 14, 2014, were to be excluded in any criminal prosecution. Tests from devices that were calibrated and certified after September 14, 2014, would be admissible. The Court found “that OAT’s protocols while remaining a work in progress, were sufficiently documented, validated, and standardized such that any results produced by those devices were the product of scientifically reliable methodology” and thus were admissible.

However, that was not the end of the story. Several months later, on August 2, 2017, during a hearing in the Taunton District Court to determine the admissibility of a breath test taken between June 2012 and September 14, 2014, it was discovered that OAT had not disclosed certain documents concerning failed calibration and certification tests to the defense team in the January 2017 hearings.  This led the counsel in the Ananias litigation to file a “Motion to Compel and Impose Sanctions” on August 19, 2017.  Hearings on this motion uncovered that over 10,000 documents had been withheld, including 432 worksheets illustrating failed annual calibration and certification tests.

On August 31, 2017, the Executive Office of Public Safety and Security (“EOPSS”) initiated its own investigation into the discovery practice at OAT. EOPSS identified various instances of intentional withholding of exculpatory evidence, blatant disregard of court orders, and other errors. The EOPSS report was released in October 2017. The technical leader of OAT was terminated within days after.

The parties in the Ananias litigation agreed on a tentative settlement. It was agreed that the Commonwealth of Massachusetts would not seek to use any results from breathalyzer tests for an expanded exclusion period, with the exception of cases of OUI in which death or seriously bodily injury resulted or for 5th offense or greater OUIs.  The agreement also requires that OAT must apply for accreditation by the ANSI-ASQ National Accreditation Board (ANAB) by August 1, 2019.

The only issue left to be decided is the end date for the exclusion period. This will most likely occur once the OAT receives accreditation and the Court is satisfied that OAT will employ a methodology that produces scientifically reliable breathalyzer results and that OAT will fully disclose any instances when it fails to do so. OAT is also expected to implement formal discovery protocols and training. Once the Court is assured that agency reforms and accreditation are achieved, the breathalyzer tests will be allowed to resume as they had before the litigation.

What does this all mean going forward?

For the time being, breathalyzer test results will not be admissible at trial.  However, this will not always be the case.  Once OAT demonstrates that it has submitted an application for accreditation that is “substantially likely to be approved,” and has addressed the specific discovery practices outlined by the court, breathalyzer test results will, once again, be admissible.  While it will take a while for OAT to comply with these items, it will certainly not be forever and may happen during 2019.  The problem with this type of ruling is that there is no certain date set on which the breathalyzer tests will once again be admissible.  For that reason and to err on the side of caution, it would be our recommendation that people continue to refuse to take the breathalyzer if stopped for a suspected OUI or DUI case.

Will I still lose my license if I refuse the breathalyzer test?

Yes. The ruling in the Ananias case did not change anything other than whether the breathalyzer tests would be admitted in Court at trial.  If the police have probable cause to arrest you for OUI and request that you take a breathalyzer, any refusal will result in a loss of your license under the “implied consent law.”  The number of previous offenses and your age will determine the length of the suspension:

Over the Age of 21:

First Offense 180 Days
Second OUI Offense 3 Years
Third OUI Offense 5 Years
Fourth OUI Offense Lifetime

Under the Age of 21:

First Offense or Greater 3 Years
If has a prior OUI causing serious bodily harm 10 Years
If has prior OUI causing death Lifetime

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