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Articles Posted in Breathalyzer Testing

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.

New Jersey Supreme Court uphold the exclusion of over 20, 000 breath test after temperature probe not performed in the case of State v. Cassidy.  

The New Jersey Supreme Court decision is important for OUI lawyers in Massachusetts and throughout the country as the Court attributed great weigh to scientific standards of accuracy when deciding whether to permit the breath test to be offered into evidence.  The New Jersey Supreme Court upheld the decision of a Special Master who wrote a 200 page decision finding that the failure to use the temperature probe made New Jersey’s breath tests scientifically unreliable.

The problem was discovered when it was revealed that Marc Dennis a coordination in the Alcohol testing until did not use the temperature probe and falsified documents that he had done so.  The issue to come before the Court was whether the failure to conduct an independent temperature probe rendered the results scientifically unreliable.

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?  

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.

https://www.youtube.com/watch?v=n-9A_7l5Vkw

Since August of this year, breath test evidence has not been used in Massachusetts as a result of discovery violations that occurred during the Alcotest 9510 litigation in the Concord District Court that was heard before Judge Brennan.  Now New Jersey, has also had an issue impacting breath test evidence Statewide.  New Jersey uses the same Breath test used in Massachusetts.

Nearly 20,000 DWI cases with breath test results are currently on hold in New Jersey after a State Police Sergeant was accused of incorrectly calibrating the breath test machines used in police departments across the state. The issue arose out of a lawsuit filed in federal court by a woman who was convicted in 2016 of DWI after blowing a breath test reading of .09.


The Attorney General’s office in New Jersey has charged Sergeant Marc Dennis with records tampering, arguing that he overlooked and incorrectly handled the Alcotest breath test machine in the 6-month recalibration of the machine. All of the Alcotest instruments produced and manufactured by Draeger Safety Diagnostics were required to undergo the said 6-month recalibration.

Massachusetts breath test evidence not being used in Court as the Head of the Office of Alcohol Testing was fired Monday.  Melissa O’Meara, the head of the Massachusetts Office of Alcohol, was fired Monday amid an investigation which uncovered that the office was withholding evidence of breath test machines that were improperly calibrated. The 126 page report cultivated by public safety officials stated that the withholding of such evidence was done intentionally and was not the result of a big mistake.

O’Meara was the technical leader of the Office of Alcohol Testing and had the responsibility of certifying the reliability of the breath tests submitted by defendant’s under arrest for operating under the influence of alcohol. Melissa O’ Meara worked with the Massachusetts State Police for nearly a decade.

The Massachusetts Office of Alcohol Testing oversees all of the states breathalyzer machines. They ensure the machines are up to date, and are, at all times, functioning and calibrated properly. The information that O’Meara was withholding is information that could have been hugely helpful to defense attorney’s and their clients. The report concludes that he Massachusetts OAT “made serious errors in judgement” in regards to handling requests made by defense attorneys in their requests for discovery.

The Massachusetts Appeals Court ruled today that the breath test operator does not have to watch the defendant to be in compliance with the 15 minutes observation period.  This ruling is contrary to the regulations requiring that the breath test operator observe a defendant for 15 minutes.

This decision arose out of a motor vehicle homicide case and is likely to be appealed.  The Appeals Court’s decision is contrary to the regulations and disregards the fact that a breath test operator has special training to determine whether someone is under the influence of alcohol.  The decision of the Appeals Court is Commonwealth v. Leary.

The burden of the Commonwealth to prove compliance with the 15 minute observation period is not very difficult.  A breath test operator should be able to watch the person taking the test for 15 minutes.  There are a lot of issues with the reliability of breath test machines that are being litigated as part of the consolidated litigation before Judge Brennan.  It was recently revealed that there were serious discovery violations during this litigation.  To lessen the requirement of admissibility was an unfortunate decision for the court when the regulation could not be more clear.  As a Massachusetts OUI Lawyer, this decision can be distinguished; it appears as though the Court may have been making inferences from the video in the case.  There is no indication from the opinion what role the other officers had during booking.  If this case is affirmed, it can be distinguished based on the facts this decision was based on.

This week there will be two significant hearings on breath testing.  The SJC will hear oral argument in the case of Commonwealth v. Camblin.  This case has been at the SJC before; in the first Camblin decision, the SJC held that a district court judge was wrong to deny the defense as hearing on the scientific reliability of the breath test.  At the time of the decision, the breath test being used was the Alcotest 7110.  The case was remanded back to the district court judge for a hearing on whether the Alcotest 7110 was scientifically reliable.  The judge concluded that it was scientifically reliable, rejecting a number of defense challenges to the accuracy of the machine.

The Camblin decision opened the door for the current litigation regarding the Alcotest 9510.  In response to the Camblin decision, defense lawyers filed motion to exclude the breath test arguing that the machines were not scientifically reliable.  The district court judge consolidated this litigation before Judge Brennan to resolve all issues regarding the scientific reliability of the Alcotest 9510.  That litigation expanded over two years; Judge Brennan concluded that the Alcotest 9510 was scientifically reliable, but found that the Office of Alcohol Testing did not have a scientifically reliable method to annually certify the machines prior to September 14, 2014.  As a result he made all tests prior to that date presumptively excluded.

That ruling resulted in district court judges holding hearings on whether the Commonwealth could prove that the analyst from OAT followed a reliable method.  Judges were reaching different decisions on this issue.  Recently, the Commonwealth stopped using all breath test results after it was discovered that the OAT failed to turn over 400 documents that were ordered to be produced as part of the litigation.  The hearing this week will address what remedy is afforded a result of this discovery violation. District Attorneys are investigating what occurred and have not used breath test evidence since this violation was uncovered.  As a Massachusetts OUI Lawyer, I would expect Judge Brennan to order that test results cannot be used at all prior to September 2014 as a remedy for the discovery violation.  As to cases outside of the period of the consolidated appeal, which would be case after September 14, 2014, these may be impacted but the discovery violation depending on the reason for the violation and whether any particular analyst had a role in the failure to disclose the exculpatory evidence.

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