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Testing places DUI cases at risk.

Byline: Samantha Allen

WORCESTER -- A statewide problem with the analysis of breath tests could cause some drunken-driving cases to be reopened or retried, including some in Worcester County.

Felix Browne, communications director for the Executive Office of Public Safety and Security, said his office became aware of a "small number'' of Breathalyzer readings that did not comply with stringent state requirements governing breath test procedures.

"As a result, the office is performing a review of these tests, which we expect to complete early next week,'' he said in a press statement.

Worcester District Attorney Joseph D. Early Jr.'s office released a statement Thursday afternoon saying the office will cease using all Breathalyzer results as evidence in court.

"Recently, we were made aware of a potential issue regarding Breathalyzer testing in OUI cases,'' the statement reads. "The Massachusetts State Police and Executive Office of Public Safety are reviewing their testing procedures. The Worcester County District Attorney's office will await further information from that review.''

Timothy J. Connolly, a spokesman for Mr. Early, said the lawyers and defendants in those cases have been notified of a "potential problem.'' He said he could not comment specifically on issues with the breath testing equipment.

Worcester defense lawyer Anthony M. Salerno confirmed his office received a letter April 16 from the district attorney's office notifying him that the case against one of his clients has been affected.

Mr. Salerno said the letter reported calibration checks associated with breath tests performed on one of his clients in a Dudley District Court case were invalid and "outside the permissible calibration range.''

Mr. Salerno said his client pleaded guilty this year based on the results of a breath analysis in February. The lawyer said he will file a motion for a new trial.

"I am tipping my hat to the district attorney for letting people know there was a mistake,'' Mr. Salerno said.

Meanwhile, the Massachusetts Bar Association on Thursday called for an independent investigation into the reliability of the tests, and urged a moratorium on introducing them as evidence until concerns are resolved, The Boston Globe reported Thursday.

Area defense lawyers said they were in a holding pattern Thursday morning, awaiting word from the district attorney's office on the matter. The problem came to light Wednesday when Middlesex District Attorney Marian Ryan released a statement saying cases in her area were affected. Faulty results were reportedly also issued on breath analysis tests in Essex, Norfolk and Suffolk counties, according to a story in the Globe. Some of the cases dated back to 2011.

Worcester defense lawyer Greg P. Benoit said Thursday he hoped Mr. Early would have been "more forthcoming'' about the topic. Few details were provided Thursday morning, with the district attorney's office saying only that evidence was under review at that time. Mr. Benoit said lawyers with cases in Central District Court in Worcester were postponing their cases Thursday morning to status hearings in anticipation of developments.

"(In the courthouse), it's one of the biggest issues everyone is talking about,'' he said.

Ms. Ryan said Wednesday her office discovered a problem with the accuracy of some breath tests. She said in a statement in mid-March her office was notified by the Office of Alcohol Testing that there was an issue. She said after state police reported on April 15 that "the problem may go beyond those isolated cases,'' her office was suspending all use of breath test results in drunken driving cases until further notice.

Mr. Salerno said that when someone is suspected of driving under the influence of alcohol, two breath tests are taken. Between each sample, the Breathalyzer unit recalibrates. If the two separate blood alcohol content results are more than .02 apart, the test is considered invalid. A reading is also taken of a simulator solution used to calibrate the machine. If that solution is found to be outside a designated range, the test should be marked as invalid.

Mr. Salerno said the letter he received from the district attorney's office indicated there was a problem with the simulator solution.

"The way these things are produced in batches, my guess is they'll probably be in the same region,'' he added.

Michael A. DelSignore, a local DUI lawyer with offices in Westboro and Marlboro, said he recalled in 2013 a case in Attleboro that was thrown out because a calibration figure was off.

"I saw it in the ticket that it hadn't calibrated correctly,'' he said. "I'd never seen one.''

Mr. DelSignore said the thought of the machines not properly "self checking'' is troublesome because drunken driving convictions greatly impact a person's life.

"When you add up all the fines following a conviction, a person could pay about $2,600,'' he said. "(A person) can lose their license. It might affect their ability to get work. There's collateral implications, like it's harder to go to Canada. ... It is very, very expensive.''

In his statement, Mr. Browne said when properly used and maintained, "the breath test instrument is one of the most accurate and reliable tools we have to identify and investigate drunk drivers.''

Contact Samantha Allen at samantha.allen@telegram.com. Follow her on Twitter @SAllen_89
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Title Annotation:Local
Author:Allen, Samantha
Publication:Telegram & Gazette (Worcester, MA)
Date:Apr 24, 2015
Words:865
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