By Michael Hartwell
FITCHBURG -- A Fitchburg lawyer wants the state appeals court to overturn three years of drunken-driving cases because of a lack of written operating procedures for a new Breathalyzer-type device, but police officers say the machines are so simple they practically run themselves.
Attorney Steven Panagiotes has a pending case with the Massachusetts Appeals Court. He specializes in drunken-driving cases and said about 3 1/2 years ago police forces in the state started using the Drager Alcotest 95-10 device, but the state forgot to write a manual on how to use the device, a violation of state law.
"If we win, it's huge," said Panagiotes. He said if his petition is successful, the state will have to retry virtually all of the drunken-driving cases in which police used that paticular device to measure blood-alcohol.
Panagiotes said the Drager Alcotest 95-10 is now the state standard, and public-safety departments started to roll it out 3 1/2 years ago in place of its predecessor, the Drager Alcotest 71-10.
"They were implemented illegally. They didn't comply with the commonwealth's regulations," said Panagiotes. He said even though the manufacturer supplies a written manual on how to use the device, state regulations require the state to draft its own manual for proper procedures to use the device.
"You really can't conduct a breath test without a manual. You don't know what to look for. How do we know it's run right?" said Panagiotes.
He presented that issue to judges at hearings and said "dozens and dozens" of cases have not gone to trial as a result. Some have been put on hold for years. He said a judge eventually gave the state four months to comply with the requirement to draft a manual.
The Executive Office of Public Safety and Security's Office of Alcohol Testing created a manual March 29, so drunken-driving arrests that occurred after that date would not be affected if the court rules in his favor.
In addition, various police departments upgraded to the Drager Alcotest 95-10 at different times, and he said some small police departments may still use the previous machine.
In 2003 the state declared that failure of a blood-alcohol breath test is considered conclusive proof of drunken driving.
Panagiotes said those cases are essentially decided by a machine, and the results are tainted by the lack of proper procedures.
On Sept. 13, Panagiotes got a letter from the Massachusetts Supreme Judicial Court saying the state Appeals Court will hear and render a judgment on his interlocutory appeal in the near future. No date for the case has been announced.
Unlike a normal case in which the Appeals Court examines an issue after a trial has occurred and challenges a ruling or a piece of legislation, an interlocutory appeal seeks a ruling either before or separate from when a trial is completed.
If the court rules in his favor, he said he's not sure how people who had already carried out their sentences would be compensated. He said people who had a 30-day license suspension suffered the least.
"Some people went to jail," said Panagiotes. "How do you undo this, undo the harm from an unfair and illegally implemented breath test?"
Calls to Draeger Safety Diagnostic Inc. for comment were not returned.
Leominster Police Lt. Michael Goldman said his department uses the Drager Alcotest 95-10 model, and the machine is so simple it practically runs itself.
"You basically push a green button and follow the prompts on a computer screen," said Goldman. "There's a few steps to follow. They are police-proof."
He said in the two decades he's been a police officer, he's seen breath tests become more and more advanced with each generation. He said the difference between the ones he started out with and the current ones is like the difference between the Wright Brothers airplane and a space shuttle.
"You can't misuse the equipment. If you do something improperly, it tells you," he said.
Goldman said the device will tell the operator if the person is blowing into it wrong.
Panagiotes said he's been told the machines say when they are being used incorrectly. He said that's circular logic, because one has to understand the machine to listen to its diagnosis of itself.
Goldman said members of the Leominster Police Department go through a monthly certification process to use the devices and they are simple to use.
"They are idiot-proof machines. Apparently, they're not lawyer-proof," said Goldman.
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