27,000 OUIs may be overturned in MA. What we know about Breathalyzer conviction results

District courts could soon be inundated with old drunken driving cases due to a recent ruling by the Supreme Judicial Court regarding the reliability of Breathalyzer tests, a local attorney said.

"The courts could be overwhelmed because of this," said the attorney, Ernest Horn of Mendon.

Horn, a former Mendon police chief, said there are several steps that those affected need to take before someone tries to overturn a case or withdraw a guilty plea.

The court ruled that those who were convicted of driving drunk during that period could be eligible to withdraw guilty pleas or have their convictions revisited. Up to 27,000 people are affected.

"They're going to want to speak to an attorney and they can evaluate how it was handled, particularly if a Breathalyzer was used," Horn said.

Why are some Breathalyzer results now invalid?

Last month, the state's highest court ruled that all Breathalyzer tests used between June 1, 2011, through April 18, 2019, had to be excluded from criminal prosecutions.

An error found in Breathalyzer test calibrations that was discovered in 2019 is what led to the SJC's ruling.

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Should defendants withdraw guilty pleas and go to trial?

Horn said drunken driving cases that did not involve a Breathalyzer will not be affected. But he said if someone had pleaded guilty prior to trial due to a Breathalyzer test coming in over the legal limit of .08, a judge would allow that defendant to withdraw the plea.

That would put the case on the track for trial. And it would force prosecutors to find any witnesses for the cases, which could be difficult for the older cases as people have moved, officers have retired and people may not remember certain incidents.

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If a case had gone to trial and a defendant was found guilty, a lawyer would then evaluate whether the Breathalyzer played a significant role in the conviction. If so, the defendant may want to petition to have the conviction overturned and to retry the case, Horn said.

Drunken driving cases are often hard to prosecute without a Breathalyzer test.

"It will effectively be impossible to prosecute these cases," Horn said.

Attorney says retrial could hurt some defendants

Natick defense attorney Frank Doran does not believe it will be as cut and dry. He said many cases are not old enough for witnesses to have disappeared or retire. And a retrial could, potentially, lead to further punishment if the new presiding judge is stricter than the original judge.

"It's not a clear-cut answer," Doran said. "It's like picking a scab. If you've already gone through it all, lost your license for 120 days, do you really want to go back and go through it again?"

Doran said the decision could be most helpful for those who are facing a subsequent offense. Punishments get more severe with each conviction. So having a previous drunk driving case overturned could have a benefit to a newer case by getting an offense removed.

"Getting rid of that first one could make a big difference," Doran said.

Revisited OUI cases haven't reached courts yet

Framingham District Court Clerk Magistrate Robert Jubinville said the court has not yet seen an uptick in people appealing old drunken driving cases. He added that it will probably take several months before this occurs regularly.

Jubinville, who was a governor's councilor for a decade before starting his clerk magistrate job in Framingham at the start of this year, said he does not know whether there will be a lot of people appealing guilty verdicts.

"A lot of these go back a number of years," he said. "If you have a first offense, it's a misdemeanor. You have your life back and your life is going good, do you really want to go back and retry it? You run the risk of being found guilty again."

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Repeat drunk drivers have higher incentive to appeal

Jubinville agreed with the lawyers that people who have multiple drunken-driving offenses are more likely to appeal.

"I think you'll see some people with third or fourth offenses, who may try to get it overturned so they can get their license back," he said.

Horn said it's still too early to determine the fallout. He said he has questions about people who paid fines or paid for classes due to faulty convictions, or even served jail time. He said there could be civil cases that come from the decision.

"What will happen to all of these people who paid thousands of dollars for programs and probation costs? Are they going to be reimbursed?" he said. "What if they got 60 days or a year in the house (of corrections)? Do you have a lawsuit you can bring? Suing the government is always difficult. I think we'll have a better idea of what's happening in a few months."

Norman Miller can be reached at 508-626-3823 or nmiller@wickedlocal.com. For up-to-date public safety news, follow him on Twitter @Norman_MillerMW or on Facebook at facebook.com/NormanMillerCrime.

This article originally appeared on MetroWest Daily News: Breathalyzer results in some OUI cases must be excluded: What to know