Breath test evidence has not been used in Court in Massachusetts since August of 2017. The reasons for this was based on discovery violations that were uncovered during the 9510 Breath test litigation in Commonwealth v. Ananias. In November 2018, Judge Brennan held a hearing to determine when breath test evidence could be used in Court following efforts of the Commonwealth to remedy its discovery violations. Judge Brennan rejected the Commonwealth’s proposal that would have allowed it to use all breath test after August 2017 and also rejected the defense proposal that breath test evidence should not be used until the OAT becomes accredited. His decision was a victory for the defense as his seven criteria require the OAT to implement standards consistent with the scientific community and have transparency throughout their processes.
Judge Brennan set forth seven criteria that the Commonwealth must show has been satisfied prior to continued use of breath test evidence in Court. These seven criteria, including the following:
- That the OAT has filed an application for accreditation with the ANAB that is demonstrably substantially likely to succeed; The ANAB is a national accreditation board for scientific labs that has to confirm to the ISO standards. This will subject the OAT to annual audits and oversight by an independent entity.