Why you may be able to vacate an Old OUI conviction in Massachusetts?  For the past two years, over 30 DelSignore Law clients have been involved in the breath test litigation in Concord District Court.  It was a 6:00 meeting with myself and a group of Massachusetts OUI lawyers where we discussed the upcoming litigation regarding the breath test source code.  At DelSignore Law, we initially joined approximately 30 clients to the litigation who took breath tests.  As the breath test litigation took additional time, more clients were joined to this statewide litigation.

The litigation took about two years, as every aspect of the machine was tested by the defense.  Judge Brennan ultimately ruled that the breath test had a reliable source code, that it was specific enough for alcohol and that the partition ratio was scientifically reliable.  He essentially rejected all of the defenses scientific attacks on the machine.  However, he made a major ruling that resulted in two years of breath tests being excluded from evidence.  Those were tests prior to September 14, 2014.  In his original ruling, the results were only presumptively excluded meaning that the Commonwealth could seek to introduce them. Ultimately, the breath tests were excluded in all of our cases that were part of the litigation as the Commonwealth was never able to meet this burden in court to admit the test results.

Discovery violation after Judge Brennan’s Ruling

Defense lawyers continued to request additional discovery regarding cases not presumptively excluded under Judge Brennan’s decision.  Thomas Workman the expert on the case had discovered that the Commonwealth withheld documents that should have been provided.  Attorney Workman and the lead defense expert had made public records requests and received 432 failed calibration tests for the breath test that were not disclosed to the defense or prosecution during the two years of litigation.  The Commonwealth after discovering it withheld failed calibration tests, then produced 30,000 more pages of data not disclosed during the hearing as well as the documents that were attached to the the calibration logs.  There was a paperclip attached to the data; the additional documents were requested and not provided until after the litigation.  This was a major discovery violation as the breath test litigation was a two week hearing, where experts were paid on both sides hundreds of thousands of dollars in tax payer money to look at the science behind the machine.

This egregious violation lead to the Commonwealth discontinuing use of the breath test in August 2017.  The head of the Office of Alcohol Testing was fired as a result of this discovery violation.  The breath test has not been used in Court since last August 2017.

Recently, an agreement has been proposed that would require the Office of Alcohol Testing to become an accredited lad by August 2019.  The issue for the judge is when breath test evidence will be used again it it will be prior to the OAT becoming an accredit lab.

Based on these discovery violations, if you have admitted to an OUI case with a breath test, it is important to speak to an Attorney about potentially vacating your plea.  At DelSignore law, we have had one client’s plea vacated and are contacting our clients who accepted pleas about potentially reopening their case.  Feel free to contact us at 781-686-5924.