Presumptive Exclusion of Breath Tests Ends in OUI Cases

Presumptive Exclusion of Breath Tests Ends in OUI Cases

By: Pat Murphy July 30, 2019

The results of the breath test in Massachusetts has not been used since August of 2017 in Massachusetts OUI cases. Back in 2014, there was litigation challenging the source code and the reliability of the 9510 breath test machine. However, after the initial litigation ended, it was uncovered that the government did not turn over roughly 400 documents that were relevant in that hearing. As a result of this discovery, the commonwealth stopped using the breath test results in Massachusetts in 2017.  On Jan. 9, Brennan issued a sanctions Order in the case of Ananias v. Commonwealth establishing seven new requirements for the state to meet before the period of presumptive exclusion of Alcotest 9510 results would end.  Foremost among these requirements was that the Commonwealth was mandated to show that the Office of Alcohol Testing (OAT) had filed an application for national accreditation as a calibration and testing lab “that is demonstrably substantially likely to succeed.”

In an Order dated July 29, 2019, Judge Robert A. Brennan granted the Commonwealth’s Motion to Admit Test Results obtained by police using the Draeger Alcotest 9510 device. The judge’s order applies to 9510 devices calibrated and certified by the State Police Office of Alcohol Testing “on or after April 18,” the date of their application for accreditation. The Motion was granted because OAT finally obtained accreditation in June as a forensic calibration laboratory. Judge Robert Brennan’s Order retroactively lifted the “presumption of unreliability” that for more than two years has kept breath-test results out of all but the commonwealth’s most serious drunken-driving cases.

In February 2017, Judge Brennan recognized the “presumptive unreliability” of thousands of breath tests administered by police officers using the Alcotest 9510 device. Specifically, Brennan found that the methodology OAT used for annually certifying the devices from June 2012 to Sept. 14, 2014, did not produce “scientifically reliable” blood alcohol-content results.

In August 2017, district attorneys suspended the use of breath-test results statewide in drunken-driving cases not involving serious injury or death, responding to mounting evidence of dysfunction at OAT.

In November, Brennan conducted three days of hearings to settle differences between the state and defense counsel on the appropriate discovery sanction in Ananias for OAT’s failure to produce hundreds of documents indicating calibration problems with the 400 Draeger devices used by police across the state.

The other conditions set by Brennan in his January sanctions order were designed to ensure that defense attorneys and the public were able to monitor closely OAT’s progress toward accreditation. In addition, they required a showing that OAT had cured the problems that led to the lab’s failure to disclose exculpatory evidence in Ananias.

In opposing the commonwealth’s latest motion to admit test results, defense counsel argued that the operative date for admission should be June 12, when the state actually received ANAB accreditation.

The defense alleged that OAT demonstrated a continuing lack of transparency by recently withholding from defense counsel ANAB’s actual report on its accreditation of the agency. Judge Brennan concluded the lab’s other efforts to improve responsiveness and transparency obviated the need to further penalize the state. The April 18 date chosen by the court coincides with the publication of ANAB accreditation requirements on the OAT’s eDiscovery portal, which Brennan concluded was the date by which the commonwealth had satisfied all of the conditions of his Jan. 9 order.

There is still an outstanding issue of how many of the Commonwealth’s 9510 devices are correctly calibrated in accordance with updated standards. If you are facing a “drunk driving” charge, regardless of whether you took the breath test, you need experienced criminal defense counsel to ensure that all avenues of potential defenses are properly explored. For more information, please contact Attorney Eric Schutzbank.

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