WORCESTER, Mass. – Prosecutors in Worcester and several other state jurisdictions are halting the use of breath evidence amid new concerns about the machines and their management.
“Our office, along with several other District Attorney’s offices across the state, will continue to temporarily suspend the use of breathalyzer evidence in court proceedings,” Worcester DA Joseph D. Early Jr. confirmed to the Telegram. & Gazette Tuesday, part of the USA TODAY Network.
A list of offices suspending the use of evidence was not immediately available from the Massachusetts District Attorneys Association, but two defense attorneys who raised concerns said they believed most prosecutors did. had done.
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“Due to ongoing issues with the certification process for breathalyzer operators and a lack of clarity from the Office of Breath Alcohol Testing (OAT), I order the immediate suspension of use. any evidence of breath test results in trials or pleadings. in all Hampden County courts, ”Hampden County District Attorney Anthony D. Gulluni wrote in an email to staff on Friday.
The concerns, which appear to surround the disclosure that some police officers have performed tests with expired breathalyzer certifications, come just months after notices began to be sent to 27,000 people statewide regarding eight years of tests invalidated for a separate calibration issue.
Concerns about breath testing machines
Joseph D. Bernard and Steven W. Panagiotes, two defense attorneys who have exposed concerns about breath testing machines for years, say the new concerns stem from both potential issues with the devices. and a culture of secrecy within the OAT.
A judge ruled out breathalyzer results from 2011 to 2019, and the bureau chief was fired, after an investigation found the bureau improperly withheld evidence of machine calibration issues from lawyers for defense.
Despite this, Bernard and Panagiotes said, the OAT – a division of the State Police Crime Lab – continued to withhold potentially exculpatory information not only from defense attorneys, but prosecutors as well.
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“They’re drying them,” Panagiotes said, warmly congratulating prosecutors, including Early, for their handling of the matter.
An email T&G acquired shows that the prosecutors who handle breathalyzers recently made a decision to formally file a “find / information” request with the OAT regarding disclosures that all officers who performed breathalyzer tests were not certified.
Questions included the number of officers involved, corrective action taken and whether the OAT intends to notify defense lawyers of the issue through an electronic portal set up for discovery purposes.
“It’s a bit unprecedented,” Bernard said of the email. “They’re making a discovery request mostly on their own (agency).”
Bernard told him that the request portends a concern and a lack of trust between prosecutors and the OAT that he considers justified.
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Agency that supervises the OAT
Late Tuesday afternoon, a spokesperson for the agency that oversees the OAT provided the T&G with a copy of a letter he said was being sent to prosecutors statewide.
Dated June 8, the letter contains information on agent certification issues as well as two other concerns raised by Bernard and Panagiotes.
None of the concerns raised by lawyers “impact” on the reliability of breathalyzers, the OAT argued in the five-page letter.
According to the letter, the certification issues affected a small number of officers and were administrative in nature.
“The failure of these (officers) to complete both phases (of recertification) in a timely manner has no significant bearing on their proficiency in administering breathalyzers, nor on the reliability of the breathalyzer instruments themselves.” he wrote.
The certification concern isn’t the only concern Bernard and Panagiotes raise about machines.
Bernard last summer raised a separate question about some breath testing machines reporting results without certification that an officer had performed the tests under penalty of perjury.
He said he was still pursuing the issue in court. In its letter, the OAT called the issue a minor one that it is addressing with the manufacturer of the respirator.
Clean only with dish soap
Panagiotes this year raised concerns over a May 2020 OAT memorandum that recommended officers use only two types of cleaners on machines to avoid damaging them: “Ms. Meyer’s Peony (no other fragrances) ”or“ Seventh Generation Free Clear Dishwashing Detergent ”.
“NOTE: The use of other products may damage the breath test instrument,” the memorandum reads.
Panagiotes said the memorandum should have been, but was not, posted immediately on an eDiscovery portal created to ensure the OAT forwarded timely information to the defense bar.
In its letter of Tuesday, June 8, the OAT said the concern was overblown, noting that it had posted the information on its own section of the state’s website.
He said the memorandum was not a change in policy or protocol, and alleged that Bernard and Panagiotes were “misleading” in their criticisms of the OAT.
Panagiotes told T&G last week that he was concerned the OAT would directly tell defense attorneys that all but two types of cleaners could damage the machines.
He recently raised the issue in a case in Fitchburg District Court, he said, with Judge Christopher P. LoConto accepting an OAT employee to testify about the memorandum.
OAT had no way of knowing
Panagiotes said that during testimony, a chemist admitted that the OAT had no way of knowing if the police were following instructions and that the machine had no way of informing officers that it had been damaged by improper cleaning.
Panagiotes said he felt bad for line prosecutors across the state who, he said, could now see cases negatively affected by something they probably knew nothing about.
“These people are not getting what they deserve from the Bureau of Blood Alcohol Testing,” he said.
Bernard said he did not believe, reading the OAT letter on Tuesday night, that it was addressing the concerns raised.
He said the office had had the opportunity to recognize a mistake, but instead reacted “in an aggressive and defensive manner.”
Bernard said he plans to continue raising his concerns about the machines in court.
Follow Brad Petrishen on Twitter: @BPetrishenTG.