SALEM — More than 27,000 people convicted of drunken driving between June, 2011 and last April will soon be receiving notices that they may be entitled to have those convictions vacated as a result of improperly calibrated breath test machines — and efforts by now-former state officials to hide the true scope of the problem.
Springfield-area attorney Joseph Bernard, who led a group of defense lawyers who challenged the use of the devices after the calibration issue was first disclosed, said he expects that those notices, the result of an agreement between defense attorneys and district attorneys across the state, will be going out within the next two to three weeks.
"Anyone who had a breath test that was involved in a guilty finding or plea is going to get a notice," said Bernard.
That could range from a person deciding to plead guilty to a first offense after being told that a result of .08 or above would allow a judge or jury to automatically find that they were impaired to someone who went to trial and had an officer testify about the results of a breath test.
Those notices will be sent to anyone who took a test on the Draeger 9510 Alcotest, the machine first purchased for every police department in the state by a state lab, the Office of Alcohol Testing, back in 2011, but not all of them will have had those test results used against them, after several district attorneys suspended their use in 2015.
The Gloucester Daily Times and The Salem News first reported on the discovery that the new machines, which used a different method of determining blood alcohol content, had not been calibrated by the manufacturer to meet the Massachusetts standard for margin of error, which was more narrow than in other states.
The Essex County district attorney's office was among the first to stop using the results of breath tests on the machines in 2015, once the discovery was made.
State officials subsequently announced that they had obtained a software update for the machines.
But Bernard and fellow attorneys then realized that the new method had not been vetted by a judge, something that is usually required for the admission of scientific evidence, in a hearing. Based on that, Judge Robert Brennan initially ordered that a smaller group of test results would be excluded as evidence.
Then, an investigation by the state's Executive Office of Public Safety and Security found that managers in the Office of Alcohol Testing had purposely withheld documents showing 432 times that the machines failed to properly calculate.
Brennan then ordered that the results of all breath tests conducted on the machines going back to June 2011 be barred from use, until the Office of Alcohol Testing received accreditation from a national organization. That happened last spring.
"Ultimately, however, the court's purpose is to determine the point at which the breath tests produced by the Alcotest 9510 ... are reliable and when the public would trust them as reliable," Brennan wrote in a decision allowing prosecutors to resume using the results starting in August.
Convictions, even for a first offense, carry potentially life-altering consequences, said Bernard: the loss of a driver's license even for 45 days for a first offense may have led to the loss of employment, and convictions can result in lost chances for a job or housing.
And for some who may have been charged again, vacating a prior conviction could mean the difference between spending months in jail or being placed on probation, and between losing a license for a few weeks or for years.
District attorneys offices are compiling lists of the people who will receive the notices. Middlesex District Attorney Marian Ryan's office is coordinating the effort.
Bernard said even before the notices have gone out, he's already handled at least 75 motions to vacate drunken driving convictions across the state as a result of the issue.
Courts reporter Julie Manganis can be reached at 978-338-2521, firstname.lastname@example.org or on Twitter at @SNJulieManganis.