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Articles Posted in Breathalyzer Testing

The Massachusetts Supreme Judicial Court in the case of Commonwealth v. Hallinan paved the way for anyone convicted of an OUI with a breath test from 2012-2019 to have their old case vacated without fear of harsher penalties if convicted after retrial.

What steps should you take if you did admit to a breath test or were convicted after trial.  Keep in mind:  even if you got a CWOF on an OUIU charge that counts as a conviction and can be vacated.

Here is what I would recommend you do.  I have been vacating these old OUI cases for the past two years and have had at least 10 clients receive new trials.  None of my clients have been subsequently convicted of OUI; all have had their prior conviction either dismissed or they were found not guilty.

The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Lindsay Hallinan which allows someone seeking a new trial based on an OUI plea or conviction involving breath test results between 2012 and 2019 to receive a new trial without fear of harsher penalties from the Court or Registry of Motor Vehicles.  The major detriment to these motions prior to the Hallinan decision was that the RMV was saying that if someone lost after a retrial, the license suspension starts over as if the case just happened, not giving any credit for the license suspension that was already served.

  • This could have a major impact as prior to this decision the number of individuals seeking new trials was relatively low which may have resulted out of fear of further license suspensions.  This decision removes this obstacle to seeking a new trial.

The SJC decision in Hallinan has three major impacts:

The Massachusetts Supreme Judicial Court heard oral arguments on December 7th in Commonwealth v. Lindsey Hallihan.  This case deal with the fall out from the Ananias litigation and the serious discovery violations that occurred, undermining the integrity of breath test results for a period of time from 2011 to 2019.  In the Hallihan case, the defendant filed a motion for new trial based on the fact that her breath test was in the period of time where the discovery violations occurred.  The trial judge denied the motion to vacate.  The SJC has to decide what standard and remedy to apply when a defendant brings a motion to vacate.

The SJC looked to its case on prosecutorial misconduct from the drug lab scandal.  The SJC was wrestling with the issue of whether it should:

  1.  Apply a global remedy and dismiss all cases with prejudice; or

Massachusetts District Attorneys will be mailing out notices to those individuals who took a plea on OUI cases involving breath tests that there were potential inaccuracies with the test results.  As a result of the litigation in Commonwealth v. Ananias, many of out clients went to trial on OUI cases from 2012 to 2019 without the breath test coming into evidence.  Attorney Delsignore was involved in the litigation from its inception; attending the first meeting of lawyers on this issue at the CPCS office in Worcester, Massachusetts.  Clients with good cases based on the observations, had their cases stayed until the litigation was resolved.  Ultimately, those clients went to trial without breath test evidence coming into evidence during the trial.  

However, many individuals charged with OUI may have plea to an OUI charge without the benefit of having a lawyer that was aware of the litigation or could have represented themselves pro se without knowing that the breath test evidence would not be part of the case at trial.  Although breath test evidence can be inaccurate and unreliable as it was in Massachusetts, it tends to be misunderstood by the public in terms of its reliability.  

Based on these recent developments, if you admitted to an OUI, you may want to consult an attorney to see if your case can be reopened.  It is possible if the officer is around that the Commonwealth could still prosecute the case without the breath test results.  In other words, there are two theories that the Commonwealth relies on to prove an OUI offense.  First, the per se theory.  This means that if you took a breath test and it is over .08, you are in violation of the per se law.  The second theory is the impairment theory used when the breath test is excluded from evidence or when a breath test is refused.  Under this theory, the Gov contents that based on the driving, the observations of the officer and your performance on the field sobriety tests, that you were impaired in the officers opinion.  If a judge or jury believes this opinion, beyond a reasonable doubt, you can be convicted of OUI under an impairment theory.  It is possible that the Commonwealth could seek to retry the case under an impairment theory.  Since you would have completed probation and already lost your license, the Commonwealth may be satisfied with vacating the conviction and dismissing the charge.  In some cases, witnesses may not be around to prove the case.  Each case will be reviewed on a case by case basis in terms of what happens if the plea or conviction is vacated.  

Massachusetts OUI Lawyers will once again have to deal with breath test evidence as most police departments have complied with the reforms required by Judge Brennan as part of the Ananias litigation.  Last week I spoke at the Plymouth Country Bar Association on Breath test evidence.  It has been a long time since many lawyers have had to try to keep a breath test out of evidence as a result of the Ananias litigation.  But it is back.  

What do lawyers need to know about breath test evidence?  

All breath test data is now online; you can get all the periodic tests and annual certifications for each breath test machine in the online portal. As part of the reforms required by Judge Brennan, the Office of Alcohol testing is suppose to be more transparent about what it is doing with the breath test machines, the documents that it has and be more forth coming with discovery requests.  While all the documents are online, it is still the Commonwealth’s burden to introduce and provide these documents at the time of trial.  The online portal means that defense lawyers do not have to wait for the Commonwealth to produce these documents to begin determining if the breath test documents would be admissible and show that the machine is reliable.  

In a December 23, 2019 article in the New York Times by Stacey Cowley and Jessica Silver-Greenberg, the New York Times reported on an increasing concern over the use of ignition interlock devices for drivers with drunken driving convictions. The interlock device is connected to the vehicle’s ignition and requires the driver to prove sobriety by blowing into the device before allowing the vehicle’s ignition to start. By some accounts, the devices have resulted in 15% fewer fatalities from alcohol-related car accidents in the 34 states that require them and have prevented more than three million attempts to drive drunk in the past decade or so.

While the interlock devices have effectively prevented attempts to drive drunk and prevented alcohol-related accidents, the interlock devices have also presented as a new cause for distracted driving. While the interlock devices first require a breath test prior to starting the vehicle’s ignition, they also require intermittent tests while the driver is on the road. Drivers are required to hold the test with one hand and blow into it to keep driving. If the driver does not comply with one of the randomly-initiated “rolling tests,” the vehicle’s horn honks and lights flash until the vehicle’s ignition is turned off.

Manufacturers of the interlock devices, while benefitting from the rapidly-growing and lucrative interlock device industry, cite a lack of evidence of interlock-related distracted driving accidents, and also cite that it is impractical to expect drivers to pull over each time they retest. The National Highway Traffic Safety Administration, however, began revising its guidelines for the use of the device, indicating that it intends that drivers should pull over to the side of the road before performing the retest. Still the function of the devices has not changed, and the device does not require that a vehicle be in park before performing a retest.

A New York Times article by Stacey Cowley and Jessica Silver-Greenberg confirms what Massachusetts OUI lawyers and defenses attorneys everywhere have been arguing for years, that breath test machine are often inaccurate and unreliable.  The Times found that these machines, a “linchpin of the criminal justice system,” are, at best, unreliable. In its investigation, The New York Times found evidence that the machines’ internal code was flawed, creating rounding errors that pushed results over the legal limit – 0.08 or higher. Further, the machines are required to be calibrated; often, this never happened. In some cases, calibration records were completely faked.

Defective Design = Reasonable Doubt: Experts in Washington find numerous problems with breath test machines and results

At least one manufacturer – Dräger, a German company – has repeatedly blocked efforts to review their software code as well as any reports regarding the machines. A judge in Washington granted a request from defense lawyers to have the code evaluated by an outside expert. Robert Walker and Falcon Momot, described as “veteran programmers and security experts,” wrote a report titled, “Defective Design = Reasonable Doubt.” They shared the report with defense attorneys at a conference. But Dräger demanded that the report be destroyed by them as well as anyone with a copy. The New York Times was able to obtain a copy that had escaped destruction; it stated that Dräger’s Alcotest 9510 machine was “not a sophisticated scientific measurement instrument” and that it did “not adhere to even basic standards of measurement.” Instead, the machine rounded up at least some of the results. Further, these machines did not account for the temperature of the person’s breath. Samples above 93.2 degrees (as most breath samples are) often cause inaccurately high readings. This is because Washington opted not to pay the extra money for a sensor that would measure breath temperature and allow the machine’s software to account for it. Washington was not alone.  Massachusetts has not paid for the additional feature to account for breath temperature, only the State of Alabama has this added feature for enhanced accuracy of results.

In Massachusetts, those charged with OUI since August of 2017 have not had breath test evidence used in Court.  This was based on some egregious violations of discovery orders in the 9510 breath test litigation that began in 2015.

To remedy the problem with the Office of Alcohol Testing not providing documents and understanding its obligation to provide exculpatory evidence, Judge Brennan imposed seven criteria that the Office of Alcohol Testing must comply with in order to use breath test evidence in court.

  1.  That the Office of Alcohol Testing submit an application for accreditation with the ANAB that is substantially likely to succeed.
  2. that the application be put on the online portal;
  3. that the ANAB Accreditation criteria be public on the online portal;
  4. that the Office of Alcohol Testing create a discovery protocol.
  5. that the protocol be put online.
  6. that the OAT employees be trained on the meaning of exculpatory evidence.
  7. that all written training procedures be put online.

Judge Brennan found that the Office of Alcohol Testing complied with all of these seven criteria on April 18, 2019.  Accordingly, his ruling allows breath test evidence on machines calibrated after that date to be used in evidence.  This means that police departments are going to have to have their machines certified immediately to have its test resulted admitted in court.  Typically, police departments have the machines certified on an annual basis.

History of the breath test litigation in Massachusetts and how we got to Judge’s Brennan’s recent ruling

In 2015, Massachusetts criminal defense lawyers started the 9510 breath test litigation.  This was an attempt to challenge the scientific reliability of the breath test machine used in Massachusetts.  The focus of the litigation when it started in 2015 was on the source code and other scientific problems with the breath test machine.  The source code of the breath test machine is the computer program that governs how the breath test machine produces the numbers that come out of the machine as a breath test result.  Other scientific challenges included the blood to breath partition ratio, whether the breath test was specific enough for alcohol to be scientifically reliable.  Judge Brennan ultimately rejected all of the scientific challenges.  However, during the litigation, it was revealed that the Office of Alcohol testing had documents that were never provided to defense attorneys in the usual discovery.  Work sheets were provided that had not been previously turned over as part of the Office of Alcohol testings discovery package. Defense attorney asked Judge Brennan to find that the Office of Alcohol Testing did not have a method or procedure to perform its annual certification on the breath test machines, making the results unreliable in court.

Judge Brennan agreed with this argument and excluded two years of breath test results.  His initial decision in the 9510 litigation excluded breath test results prior to September 14, 2014.  After this decision, the lead expert for the defense Thomas Workman discovery that he received different documents in his public records request than what was received during the discovery process.  It was reveled that 425 failed calibrations were never turned over to the defense.  It was this discovery violation that lead to the head of the Office of Alcohol testing being fired and the Commonwealth agreeing not to use breath test evidence until the violations were remedied.  This occurred in August of 2017.

It was as a result these discovery violations that Judge Brennan ruled that there should be independent oversight over the Office of Alcohol Testing.  By requiring the Office of Alcohol Testing to be accredited, Judge Brennan is holding the Office to external standard of scientific reliability.  To maintain its accreditation the Office of Alcohol Testing is subject to external audits.  Further, his requirement that all discovery be online was meant to create an atmosphere of transparency.  The Office of Alcohol testing was not being upfront with its discovery and honoring its requirement to provide exculpatory evidence.

What it means for those charged with OUI in Massachusetts?

Judge Brenann’s ruling means that the Commonwealth will have a major piece of evidence back in when prosecuting OUI cases.  Defense lawyers still have many ways to challenge this evidence.  Police must administer the tests in the proper manner and there are other scientific reasons why a breath test result may not be accurate for a particular defendant.

To read some earlier post on the Massachusetts breath test litigation you can click here.

You can also find Attorney DelSignore on Facebook to learn more about Massachusetts OUI Laws.

To read Judge Brennan’s decision visit the this link of resources to important DUI cases and materials.
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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:  

  1. 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.  

Breath test evidence has not been used in Massachusetts since August 2017 as a result of serious discovery violations that occurred during the litigation in Commonwealth v. Ananias.  This litigation originally started over whether the breath test source code was reliable, but evolved to include litigation about whether the Office of Alcohol Testing had a scientifically reliable method to certify the machines as reliable.

Recently, a hearing was conducted in which Judge Brennan reviewed evidence submitted by the State. A number of violations on behalf of the Office of Alcohol Testing were highlighted including unsanitary conditions, potential rodent contamination,  and failure to properly calibrate the Alcotest machine. Defense attorneys highlighted evidence that some of the 9510 devices were used as a nesting site for rodents, and that the breath test machine tested positive for MRSA. The state’s position is that the outstanding issues related to the breath test have been addressed, citing the state’s compliance with the discovery last summer.

Defense attorneys point to the systemic issues that surround the breath test machine which inherently hinder the Office of Alcohol Testing’s ability to properly calibrate the machines that police officers utilize. As of now, the OAT is not a nationally accredited crime lab. Defense Attorneys argued that in order for the tests to be used, the OAT needs to be accredited by the American National Standards Institute-American Society for Quality.  To read more about Accreditation you can read out prior blog post.

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