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.

If the SJC finds that the Alcotest 7110 is not scientifically reliable, the decision would apply to all breath testing in Massachusetts as the machines use the same technology.

For questions regarding breath test litigation in Massachusetts, feel free to call Attorney DelSignore at 781-686-5924.