Belchertown lawyer played key role in breathalyzer case 

  • Belchertown resident and attorney Joseph Bernard is shown in his Springfield office on Thursday, June 27, 2019. STAFF PHOTO / KEVIN GUTTING

  • STAFF PHOTO / KEVIN GUTTING STAFF PHOTO / KEVIN GUTTING

  • Belchertown resident and attorney Joseph Bernard is shown in his Springfield office on Thursday, June 27, 2019. STAFF PHOTO / KEVIN GUTTING

Staff Writer
Published: 6/28/2019 12:01:41 AM

BELCHERTOWN — A state police office has cleared a major hurdle to re-allow breathalyzer test results as admissible evidence in Massachusetts court cases, with the Office of Alcohol Testing achieving national accreditation last week.

Breathalyzer test results were temporarily excluded as evidence in most court cases across the state after a January ruling by Judge Robert Brennan in Salem District Court. Exceptions exist in OUI cases alleging motor vehicle homicide, serious injury, or in the case of a fifth or greater OUI offense.

The moratorium was to remain in place until the State Police Crime Lab’s Office of Alcohol Testing could meet certain standards — primarily, taking significant steps toward national accreditation.

Belchertown resident and attorney Joe Bernard, who has offices in Springfield and Belchertown, has been at the forefront of the issue as lead counsel for Commonwealth v. Ananias, the lawsuit that led to the moratorium. The lawsuit challenged the scientific reliability of the breath test devices used by police.

Results from breathalyzer tests administered from 2011 to 2014 were deemed inadmissible in court after Brennan determined in 2017 that the Draeger 9510 breathalyzers used by Massachusetts police produced scientifically reliable results, but that the Office of Alcohol Testing’s annual certification methodology compromised this reliability.

A few months later, it was determined that the Office of Alcohol Testing had intentionally failed to disclose to attorneys that over 400 of the Draeger 9510 breathalyzers were improperly calibrated, which resulted in all tests from 2011 onward being inadmissible in most court cases.

“The manner in which the Office of Alcohol Testing maintained the machines and communicated with the courts was dysfunctional and dishonest,” Bernard said in an interview with the Gazette on Thursday.

He said the office’s accreditation benefits “every citizen who has any contact with that [breathalyzer], now that we have an independent set of eyes on the machine and the calibration,” and referred to the accreditation measure as “a watchdog.”

Bernard said 30,000 to 40,000 people are affected by the ruling and will receive notices in September and October informing them that if they had a plea or trial involving breathalyzer tests within the specified time frame, they are eligible to have their cases overturned and get a new trial.

“People really need to recognize, if they have an OUI from (2011 until the present) and it’s impacting a job application or a bank loan, there’s a mechanism to take that off their record now,” Bernard said, “because these breath tests have been tainted.”

The state will continue to use the Draeger 9510 breathalyzers, but the machines meet certain standards in accordance with the accreditation requirements.

The Northwestern district attorney’s office hailed this week’s developments.

“We are pleased that the Office of Alcohol Testing has achieved accreditation, which will restore our ability to introduce breathalyzer evidence at trial,” First Assistant District Attorney Steven Gagne said in a statement.

“Breath tests are a critical piece of evidence to help keep dangerous drivers off the road, and we look forward to once again being able to rely on this evidence in court.”

Jacquelyn Voghel can be reached at jvoghel@gazettenet.com.



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