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Inaccurate Breath test results in Massachusetts could allow prior OUI pleas to be vacated resulting in the removal of an OUI conviction

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.  

I would advise anyone with an OUI conviction to consider taking advantage of this opportunity to potentially have your conviction vacated.  If the Commonwealth did retry the case and you were found guilty, most judges would likely find that your completion of the 24D program previously and payment of the money to apply to the new sentence in event of a guilty finding.  It is unclear however, how the registry of motor vehicles would treat a new notice of license suspension.  

I would recommend a client looking into having their conviction vacated.  Attorney DelSignore represents clients all over Massachusetts on OUI cases and would be able to give you a good assessment of the possible outcomes of your motion.  While we can never guarantee a result, our opinion is very informed based on years of practice throughout Massachusetts handling OUI cases.  

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