Essex and Plymouth County DA’s Refuse to Suspend Breath Test Evidence

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Most county District Attorney’s Offices have suspended the use of breath-test evidence in Operating Under the Influence (OUI) cases because of renewed concerns over the reliability of the Draeger 9510 device and operations at the Office of Alcohol Testing (OAT). OAT is responsible for to provide both prosecutors and defense counsel information pertaining to the maintenance and operation of the Draeger breath-test device before results can be admitted into evidence at a trial for OUI.

All counties but Essex and Plymouth have suspended the use of the test results until the current concerns can be resolved. This is the second time that the Draeger 9510 device has been suspended. In 2017, the holding in Commonwealth v. Ananias resulted in thousands of OUI cases being reviewed and/or vacated.

The current issues resolve around whether or not OAT is being forthcoming with respect to potentially exculptatory exvidence concering operator status and the maintenance of the 9510 devices. The State has a constitutional obiligation to disclose exclupatory information and there are questions if OAT is meeting its obligations. The DA’s Offices are not able to respond to certain discovery requests because OAT is allegedly not providing the necessary information to the DA’s Offices. OAT is refuting the claims and has asserted that the machines are reliable and they are producing valid results. The DA’s (except for Essex and Plymouth County) have decided that it is prudent to wait until they are satisfied OAT is able to meet their obligations.

If you have recently been involved in an OUI incident in which a breath test was involved, please contact Berid & Schutzbank to learn more about your options and possible defenses.



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