JUDGE: Early Breathalyzer Test Results Flawed

CONCORD - In a long-awaited ruling that could impact thousands of convicted drunk drivers across the state, a judge ruled that Breathalyzer results between 2012 to 2014 may be flawed and defendants who were charged, and convicted of drunken driving, can challenge the calibration of those machines and the results they yielded.

In a ruling issued Friday, Concord District Court Judge Robert Brennan, who was tasked with reviewing the reliability of the machines that register a driver's level of intoxication, denied a motion by private and public defense attorneys to exclude test results from machines calibrated and certified after Sept. 14, 2014, after reliable protocols were put in place by the State Police Office of Alcohol Testing.

In Massachusetts, .08 is the legal limit for drunken driving.

But due to a lack of protocols prior to September 2014, Brennan wrote that test results between June of 2012 and Sept. 14, 2014 are "subject to the possibility of a case-by-case demonstration of the reliability of the calibration by the State Police OAT of a particular device'' to a trial judge.

Lowell defense attorney Gregory Oberhauser, a local Breathalyzer expert, estimates that that between 2012 and 2015 there is in excess of 20,000 drunken driving cases statewide that could be impacted by Brennan's ruling.

Oberhauser, who was part of team of private and public defense attorneys to challenge the reliability of the Breathalyzer machine, said "We knew there were problems with the machines.'' With Brennan's decision, Oberhauser said he feels "some what vindicated.''

But Brennan's ruling now opens a "huge can of worms'' for those people who may have been convicted of drunken driving using faulty Breathalyer results.

"Now each side has to huddle to determine the next step,'' Oberhauser said. ""We need to judiciously look at the cases involved.''

He notes that while there are more than 20,000 cases impacted prior to 2014, there is a backlog of 5,000 to 10,000 newer drunken-driving cases that have been "stayed'' pending Brennan's ruling that now need to move forward in the court process.