The Impact of OUI Cases Involving the Draeger Alcotest 9510 breathalyzer test

A case on appeal with the Supreme Judicial Court of Massachusetts presents several novel and important issues that could affect potentially tens of thousands of operating under the influence (OUI) cases in the state. In Commonwealth of Massachusetts v. Lindsey  Hallihan, the Court must decide two major issues: 1)    What is the standard to be awarded a new trial after a the accused plead guilty when it is disclosed that the State withheld exculpatory evidence? And 2)  If a motion for new trial is allowed, can the Court require the RMV to give a defendant credit for any license loss should there be a conviction after a retrial when a retrial is based on the failure to disclose exculpatory evidence?

Background

The case comes from a familiar situation in Massachusetts. Many will recall the Annie Dookhan cases where Ms. Dookhan, who was employed as a chemist in the forensic drug laboratory (Hinton drug lab or lab) from 2003 until 2012 was found to have tampered with or falsified countless drug test results. In the litigation that followed, the Supreme Judicial Court found that where Dookhan signed the certificate of drug analysis as either the primary or secondary chemist in a defendant’s case, that defendant was entitled to a conclusive presumption that Dookhan’s misconduct occurred in his case, that it was egregious, and that it is attributable to the Commonwealth. This would allow those who were sentenced based on drug tests involving Ms. Dookhan were subject to either new trials or vacating their sentences.

In 2015, an analogous situation came to light. This time, the culprit is The Office of Alcohol Testing (OAT) which, since starting to us a blood alcohol level breathalyzer test unit known as Draeger Alcotest 9510 to determine a driver’s blood alcohol level, had falsely represented that it had calibrated the machines in accordance with basic scientific standards. Indeed, a 2015 investigation by the Executive Office of Public Safety and Security (EOPSS) found a widespread, long-term, ongoing and serious disregard for the legal obligations of the department, often withholding exculpatory evidence, misrepresenting its testing process, and either ignoring or disobeying court orders pertaining to discovery. The extent is staggering. During its investigation, the Commonwealth identified over 50,000 documents that OAT intentionally withheld, including exculpatory information on thousands of cases.

Unlike the Dookhan cases, stemming from the acts of a single government agent, the acts of the OAT showed not a single “bad apple” but an insular and egregious culture of both inattentiveness to the need for scientific rigor in calibrating the test but also from disclosing its continued failures, possibly leading to convictions of innocent persons.

Impact on OUI Cases involving the Draeger Alcotest 9510

For those who either plead or were convicted based on Draeger Alcotest 9510 test results, this widespread and egregious disregard for proper calibration techniques has two major impacts. First, it allows those convicted by trial to make a motion to overturn the conviction and get a new trial. At that new trial, the state will not have its single most important piece of evidence, the breathalyzer result to convict. This means that many of those convicted can have such a conviction overturned. The remaining question, though, is how it applies to cases in which the convicted party plead guilty rather than having gone to trial.

Here, the issue is that the OAT knew that its calibration was not to standard and knowingly withheld that information, known as “exculpatory evidence.” The withholding of exculpatory evidence, known as a Brady violation, so-called because of the US supreme court case Brady v. Maryland, 373 U.S. 83 (1963) which mandates under the due process clause of the 14^th Amendment of the US Constitution that prosecutors disclose exculpatory evidence. Failing to do so violates defendant’s due process rights.

To determine if there is such a violation, the court relies on a two part test from Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006). The first prong of the Ferrara analysis is that the conduct in question must be (1) egregious, (2) attributable to the government, (3) and (3) occurred in the defendant’s case. Ferrara, 456 F.3d at 294. The sheer extent of the misconduct in the Draeger cases makes this prong easy to determine.

However, moving to vacate a plea made where the prosecution withholds exculpatory evidence bring about Ferrara’s second prong – the reasonable probability that the plea would not have been made if the defendant had knowledge of the misconduct. Ferrara stated 5 factors for this reasonability test:

(1) whether evidence of the government misconduct could have detracted from the factual basis used to support the guilty plea;

(2) whether the evidence could have been used to impeach a witness whose credibility may have been outcome-determinative;

(3) whether the evidence was cumulative of other evidence already in the defendant’s possession;

(4) whether the evidence would have influenced counsel’s recommendation as to whether to accept a particular plea offer; and

(5) whether the value of the evidence was outweighed by the benefits of entering into the plea agreement.

The Massachusetts Supreme Court has established that, in cases where there is prosecutorial nondisclosure, the uniformity of the standards used to determine prejudice to the defendant under the second prong of the Ferrara test and the test to determine prejudice for cases in which a defendant claims that ineffective assistance of counsel — reasonable probability of a different outcome — is the relevant standard when it comes to pleas. So, what are those standards?

Reasonable probability standard to show prejudice in ineffective counsel cases

Therefore, in order to have a plea overturned when there is a Brady violation, the person wishing to have the plea overturned must show that, had the exculpatory evidence been presented to them, in this case that the calibration of the breathalyzer was sub-standard the Defendant would not have plead guilty. Therefore, a defendant would have to show that they knew (1) that the breathalyzer results would be the main (and perhaps only) piece of evidence to convict them and (2) that mis-calibration would render the results of the test inadmissible.

There is a question as to whether the state must disclose exculpatory evidence at the plea stage as opposed to later on towards trial. There has been much litigation on this, and for a detailed explanation, see the analysis below, but overall there is agreement that exculpatory evidence must be presented to Defendant’s at the plea stage of a criminal case.

Application for those who plead to cases using a Draeger Alcotest 9510

Presumptive Exclusion

The continuous, significant, and systemic nature of the misconduct by the OAT has already been determined and as such the results of Draeger Alcotest 9510 from June 2011 to April of 2018 should be excluded from use in prosecutions. Therefore, for any cases involving Draeger Alcotest 9510, the first prong of Ferrara test as discussed is met.

The subjective nature of field impairment tests

There are three field sobriety tests that are considered standardized, routinely used, and have been studied by the federal government. These three tests are: the nine-step walk and turn, the one leg stand, and the “horizontal gaze nystagmus” (HGN) test.

Even when given under ideal conditions, National Highway and Traffic Safety Administration studies have demonstrated that these tests have minimal reliability. The nine-step walk and turn was deemed 68% reliable to determine a blood alcohol content of over the legal limit, the One Leg Stand test had a 65% reliability rate, and the Horizontal Gaze test a 71% reliability rate.

As such, these tests are routinely not admitted as evidence of a defendant’s level of intoxication, but merely to serve as a justification of a police officer’s assumption of impairment to conduct more reliable and objective tests.

Unlike the Walk and Turn and One Leg Stand tests which are wholly based on an officer’s perception, the “horizontal gaze nystagmus” (HGN) test, in which a person’s eyeballs are observed as they follow the moving finger of the person administering the test, is proffered to have a more scientific basis. See Commonwealth v. Sands, 424 Mass. 184, 186-187 (1997) (describing HGN test and its scientific basis). The test is designed to measure nystagmus, a pattern “characterized by an unsteady, bouncing movement” of the eyeballs. Id. at 186. However, since the basis of the HGN is not widely known to the public, the Supreme Judicial Court has held that before evidence is admitted that a defendant exhibited nystagmus, there must be an evidentiary foundation and there must be a determination as to the qualification of the individual administering the HGN test and the appropriate procedure to be followed if the HGN test results are to be admitted at trial. Sands, 424 Mass. at 188. Based on Sands, prosecutors rarely rely on HGN tests to determine impairment, and instead rely on breath and blood tests – such as breath or blood testing to determine blood alcohol content.

With the unreliability and subjective nature of the field sobriety tests, the entirety of the commonwealth’s case against a defendant charged with OUI is a breath or blood test. In most cases where a breath test is consented to by defendants, no blood test is taken and in those cases the reliability of the mechanism to test the accused is of paramount importance. Given that, per the findings of Judge Brennan, the OAT failed to properly use scientific means to calibrate the Draeger 9510s and then the widespread and systematic withholding of evidence that would show this failure, anyone who plead guilty to OUI based on an improperly calibrated Draeger 9510s that the OAT concealed (those between June of 2011 and April of 2018) ought to have their pleas vacated and motions for new trial granted.

Given this situation, so long as a Defendant can show that, had they known about the substandard calibration, they would not have plead guilty, then their plea should be overturned and a motion for a new trial granted, which won’t be able to use the breathalyzer test and since all other tests are hopelessly subjective, the trial should not result in a conviction.

The ”overwhelming evidence of impairment” Standard and breath tests

Given the way that impairment is assumed from a certain level of blood alcohol content, when thinking about the impact of the failure to calibrate tests correctly and the relation to a motion for new trial, one ignore the perception of reliability of the breath test by the public at their peril.

Many defendants believe the tests are accurate and feel as though the case cannot be won if there is a breath test. Second, OUI cases are very subjective; it is hard to say how strong or weak a case is from reading a police report. Third, it is hard to recreate what a defendant would have done had there been no breath test or a disclosure of the exculpatory information given the perceived reliability of breath test evidence.

Many cases are not completely reviewed or investigated when there is a breath test. When the defendant faces a first offense, as many cases are, there is an incentive to resolve the case to try to get back on the road. If a person accepts a plea on a First OUI offense within the 30 days, the 30 day suspension would end and the 45 day suspension would start. M.G.L.A. Chapter 90 Section 24. Given the central importance of driving, many cases are quickly resolved to allow a person to get back on the road.

Against this practical realty, defendant who is part of this litigation should be awarded a new trial unless the Commonwealth can produce overwhelming evidence of intoxication.

This Court should not require defendants to bear the burden of the systematic breakdowns in the criminal process that defendant’s relied on to their own detriment. Bridgeman v. Dist. Attorney for Suffolk Dist. 471 Mass. 465, 487 (2015). This Court should borrow the standard used in Commonwealth v. Andrade, 389 Mass. 874 (1983) where a defendant attempts to have a case dismissed as a result of the Commonwealth violating his right to an independent medical exam. In Andrade, the SJC held that the right to an independent medical exam is an important right given to defendants to attempt to produce exculpatory evidence.

The Court found that suppression of evidence will not always be a meaningful remedy. The Andrade Court said that dismissal would not be appropriate if there was overwhelming evidence of intoxication. Therefore, the reasonable probability standard set forth by the Scott/Ferrara test does not go far enough as it is more difficult to judge the strength of an OUI case and or to recreate what the defendant might have done than for a case involving a drug crime or other criminal offense.

Most first offense OUI defendants are unlikely to face a house of correction sentence and are unlikely to be much worse off if they took the case to trial versus accepting a CWOF as a CWOF counts as a conviction for license purposes. Further, given the subjective nature of an OUI cases, a standard that weighs more in favor of the defendant is necessary to ensure that the Commonwealth does not benefit from the systematic failure it created and that induced the defendant to plea in the first place. Accordingly, this Court should craft a standard that recognize the unique nature of OUI as a crime of opinion to ensure that there is an adequate remedy to the egregious conduct that was committed by the Commonwealth in withholding exculpatory evidence.

The second issue in this pending appeal is what happens to those who have served some or all of their sentence and move for a new trial, have it granted, and are convicted.

Civil Penalties and Double Jeopardy

Revocation of driving privileges based on an OUI conviction is usually considered a civil penalty.

In Massachusetts the revocation of one’s driver’s license is considered merely a civil penalty. Burke v. Bank of America,90 Mass. App. Ct. 203, 58 N.E.3d 351 (2016). A civil penalty is a non-criminal remedy for a party’s violations of laws or regulations. In cases where the government seeks such a civil penalty for a criminal offense it can be difficult to distinguish criminal and civil penalties. This becomes significant when a party who has been issued a civil penalty is subject to a re-trial which brings out double jeopardy concerns.

To aid in the distinction between civil and criminal penalties, the Supreme Court of United States in United States v. Ward, 448 U.S. 242, 248-249 (1980) established a two-layer test. First, one examines which penalty is the intent or preference of the legislature. Then, if the intent is a civil penalty, one looks at whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.” If the answer to the second question is no, the penalty is most likely a civil one.

Double Jeopardy concerns do not apply to civil, remedial, and non-punitive punishments

It has long been held that Double Jeopardy protects only against the imposition of criminal punishments for the same offense. Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938). Although it was once thought that a sanction imposed in a “civil” proceeding could never constitute “punishment” for double jeopardy purposes, that is no longer the case. See United States v. Halper, 490 U.S. 435, 447, 109 S.Ct. 1892 1901, 104 L.Ed.2d 487 (1989) (noting that “[i]t is commonly understood that civil proceedings may advance punitive as well as remedial goals”). Rather, double jeopardy analysis should properly focus on whether the sanction is punitive or remedial in nature.

License Revocation has commonly been determined to be non-punitive

Most statutes regarding license revocation in the context of intoxicated operation make it clear such revocation is a civil penalty. Therefore, the crux of the issue relies on the second prong the analysis and whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.

In 1995, the Supreme Judicial Court of Massachusetts discussed this issue as it applies to license revocations in Luk v. Commonwealth, 421 Mass. 415 (1995) (Luk). The Luk court reviewed the legislature’s intent and determined that the “purpose [of license revocation] is to protect the public from future harm by depriving the unsafe or irresponsible driver of his or her authority to continue to operate a motor vehicle. Because its main purpose is public safety rather than punishment, revocation of a driver’s license is properly characterized as nonpunitive.” Luk, 421 Mass. at 426-427 (1995) (See also Powers v. Commonwealth, 426 Mass. 534, 540 (1998) (Powers) (board’s “administrative license suspension and revocation sanctions under G. L. c. 90 are nonpunitive”).

The Fourth Circuit took up this issue in U.S. v. Imngren, 98 F.3d 811, 814 (4th Cir. 1996) (Imngren) In it, the Court determined that the imposition of a one-year revocation was not sufficiently punitive to overcome non-punitive purposes. In that case, the Defendants argued several grounds on which a court could deem the suspension punitive. First, they argued that it promotes one of the traditional aims of punishment, deterrence, and the court rejected it as without merit.” Id. Citing United States v. Ursery, 518 U.S. 267 (1996) (deterrence “may serve civil as well as criminal goals”) Bennis v. Michigan, 516 U.S. 442 (1996) (forfeiture “serves a deterrent purpose distinct from any punitive purpose”).

The cases cited in Imngren to justify its positions are unrelated to suspending driving privileges after a conviction of operating under the influence. Ursery involved two trials, one criminal and one civil, regarding the manufacture of marijuana and Bennis centered around the takings clause after a wife complained that the state had taken her property (a car used by her husband to solicit sex-workers) without just compensation. The Imngren court also rejected the argument that the imposition of a one-year suspension was greater than other states, finding that both defendants had public safety related aspects to their cases – one was a repeat offender, the other failed to submit to a breath test. Id. at 816. The court again cited Ursery when it rejected the defendants’ arguments that the suspension is punitive because the behavior to which the suspension applies is already a crime. Id. at 817.

Likewise, both Luk and Powers dealt with the issue of license revocation in the context of a failure to submit to breathalyzer testing and as such, the suspension of their licenses could be reasonably related to public safety concerns and, as such, be deemed remedial and not punitive.

The imposition of a second period of license revocation after a motion to vacate based on prosecutorial misconduct is punitive.

The Draeger represents a different situation than those previously discussed. When a movant for a new trial is doing so based on prosecutorial misconduct, the defendant runs the risk of being re-convicted. Unlike shorter sentences, such as the one-year administrative suspension in Imngren, OUI cases can result in a license revocation period of eight years. This kind of penalty is severe and has repercussive and severely negative effects on the Defendant’s life while having a similarly minor effect on public safety overall.

An imposition of a second consecutive 8-year revocation period for a single instance of OUI goes to the second prong of Ward, whether a second period of revocation is so punitive in effect as to negate the non-punitive intention. Imposing a second civil penalty does not satisfy the non-punitive intent of the revocation – namely that of public safety. It is purely punitive, especially in a situation in which the defendant is a first-time offender and has already had their privileges revoked. As such, in the context of a period of revocation imposed after a new trial granted after prosecutorial misconduct (not on an act or failure to act on the part of the Defendant) such an imposition should be considered punitive and subject to double jeopardy concerns.

Not Crediting “Time Served” Violates the Principle of Double Jeopardy in the 5^th Amendment.

If determined to be punitive in the specific context of a reimposition of a license revocation after a new trial due to prosecutorial misconduct the questions of the period of revocation by the RMV amounts to a question of how to recognize the effect of a credit for “time served.” To avoid double jeopardy concerns.

The seminal case regarding the implications of double jeopardy on sentencing is North Carolina v. Pearce Simpson v. Rice, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce the court found that double jeopardy protects against “multiple punishments for the same offense.”

The Court in Pearce was clear:

“We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned—by subtracting them from whatever new sentence is imposed.” Pearce, 395 U.S. at 719

Applying this in the context of a conviction of OUI in a second trial after granting a motion for said trial due to prosecutorial misconduct would be simply to deliver the revocation punishment per statute and then to reduce it to the time the defendant’s license has already been revoked. That is what should happen here.

Given OAT’s persistent failure to properly calibrate Draeger 9510 breath tests used between June of 2011 and April of 2018 and the failure to provide the evidence of their failed calibration amounts to a Brady violation. Breath tests are key piece of evidence used to convict defendants of OUI, rendering evidence of miscalibration material to a defendant’s ability to knowingly plead guilty and, if known, would reasonably have resulted in defendant’s not making or withdrawing a guilty plea. As such the withholding of this exculpatory evidence from defendants who plead to OUI justifies vacating their guilty pleas and granting new trials. If re-convicted, the period of revocation should be given credit for the time the defendant’s license has been revoked to avoid running afoul of double jeopardy protections.

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