Should the Office of Alcohol Testing in Massachusetts responsible for calibrating and certifying the breath test be an accredited lab?  This is the next issue before Judge Brennan in the Massachusetts breath test litigation in the case of Commonwealth v. Ananias.

Judge Brennan recently granted the defense request for a hearing on this issue in the Ananias litigation.  The defense has requested that prior to the continued use of the breath test in Massachusetts that the OAT should seek accreditation.  In May of this year, I attended a seminar called Serious Science at the University of Texas Arlington Laboratory which was a five day program that focused on many of these scientific standard that will be at issue in the accreditation motion hearing.  

What does Accreditation mean?  

    Accreditation means that a laboratory meets certain minimum standards that help lead to the goal of scientific accuracy and reliability.   In the 2009, National Academy Science Report called Strengthening Forensic Science in the United States, A Path Forward, laboratory accreditation was recommended for all labs as well as certification of all science professionals.  

Organizations do offer accreditation to laboratories.  The American Society of Crime offered voluntary accreditation of public crime labs.  When labs are accredited the standards are based on the ISO/IEC 17025:2005 International Standards.

ISO/IEC 170225 is regarded as the international quality standard used by accreditation of labs that test and calibrate.  This standard would be applied to the procedures the Office of Alcohol Testing uses to calibrate breath test machines in Massachusetts.  

The problems that were disclosed at OAT was that the director did not maintain quality assurance, did not have sufficient qualifications and failed to adequately train the staff.  When the Head of Office of Alcohol Testing was fired, it was determined that documents were willfully withheld from defense counsel and that the Office of Alcohol Testing was not taking advantage of legal resources to understand its discovery obligations. Given the long standing issues with both the Office of Alcohol Testing the the drug lab, accreditation would be a step in the right direction as it would subject the Office of Alcohol Testing to independent audits.  

Accreditation would ensure that the OAT is properly documenting its procedures, training its staff, has a sufficient staff to handle the volume of requests on its office and would help to ensure reliability in the process. The Office of Alcohol testing was not run like an accredit forensic lab and did not have any standards that lead to the major discovery violations resulting in breath tests being tossed out throughout Massachusetts.  

Independent Audits by Accrediting Body

One of the benefits of requiring accreditation is that the Office of Alcohol Testing would be subject to internal audits annually to ensure compliance with the accreditation requirements and the laboratory quality control management.  

Scientific laboratories must follow standards of measurement and traceability.  Accredited laboratories and inspection bodies are responsible for ensuring standards used for accredited measurements are traceable to national or international standards in cases where the standard contributes directly to the uncertainty or validity of a measurement.  To demonstrate measurement traceability, calibration certificates for standards used must indicate traceability to national or international standards of measurement provided for the results of the measurement and the associated measure of uncertainty.  

To meet the requirement of ISO/IEC 17025 accredited calibration certificates must contain both the results and MU for each measurement point, a statement of compliance to a specification or both.  There are many different organization that recommend standards for forensic labs.  The ISO standard is the most commonly used standard.  The American Board of Forensic Toxicology recommends the following:  Each lab should have a director with required experience and qualifications.  The director at a forensic lab is responsible for daily management of the laboratory; preparation of the operation manual, establishing procedures for validating new assays, maintaining quality assurance programs and training laboratory staff.

Overview of the Ananias litigation that results in breath test results being excluded from evidence

The breath test has not been used in Massachusetts since August 2017 when discovery violations were revealed in the Alcotest 9510 litigation before Judge Brennan.  The breath test litigation in Commonwealth v. Ananias involved thousands of cases being consolidated in the statewide litigation, challenging the source code, scientific reliability of the breath test. Judge Brennan found the Alcotest scientifically reliable, but in the initial litigation excluded breath test results prior to September 14, 2014 because the Office of Alcohol Testing did not have a scientifically reliable way to perform the annual certification and did not have a written procedure to follow prior to September of 2014 to certify the breath test machines.

When a major discovery violation was revealed in the Ananias litigation, the Commonwealth stopped using all breath test evidence in August of 2017. There are now efforts by the Commonwealth to resume using the breath test in Massachusetts and efforts by the defense to reach a compromise.  Among the main objectives of the defense is to require the Office of Alcohol Testing to become an Accredited Lab.  This would be a step in the right direction to ensure scientific reliability of results that are used in court.

To learn more about the breath test litigation feel free to contact Attorney DelSignore at 781-686-5924; you can also visit our website.