In Massachusetts, those charged with OUI since August of 2017 have not had breath test evidence used in Court.  This was based on some egregious violations of discovery orders in the 9510 breath test litigation that began in 2015.

To remedy the problem with the Office of Alcohol Testing not providing documents and understanding its obligation to provide exculpatory evidence, Judge Brennan imposed seven criteria that the Office of Alcohol Testing must comply with in order to use breath test evidence in court.

1.  That the Office of Alcohol Testing submit an application for accreditation with the ANAB that is substantially likely to succeed.
2. that the application be put on the online portal;
3. that the ANAB Accreditation criteria be public on the online portal;
4. that the Office of Alcohol Testing create a discovery protocol.
5. that the protocol be put online.
6. that the OAT employees be trained on the meaning of exculpatory evidence.
7. that all written training procedures be put online.

Judge Brennan found that the Office of Alcohol Testing complied with all of these seven criteria on April 18, 2019.  Accordingly, his ruling allows breath test evidence on machines calibrated after that date to be used in evidence.  This means that police departments are going to have to have their machines certified immediately to have its test resulted admitted in court.  Typically, police departments have the machines certified on an annual basis.

History of the breath test litigation in Massachusetts and how we got to Judge’s Brennan’s recent ruling

In 2015, Massachusetts criminal defense lawyers started the 9510 breath test litigation.  This was an attempt to challenge the scientific reliability of the breath test machine used in Massachusetts.  The focus of the litigation when it started in 2015 was on the source code and other scientific problems with the breath test machine.  The source code of the breath test machine is the computer program that governs how the breath test machine produces the numbers that come out of the machine as a breath test result.  Other scientific challenges included the blood to breath partition ratio, whether the breath test was specific enough for alcohol to be scientifically reliable.  Judge Brennan ultimately rejected all of the scientific challenges.  However, during the litigation, it was revealed that the Office of Alcohol testing had documents that were never provided to defense attorneys in the usual discovery.  Work sheets were provided that had not been previously turned over as part of the Office of Alcohol testings discovery package. Defense attorney asked Judge Brennan to find that the Office of Alcohol Testing did not have a method or procedure to perform its annual certification on the breath test machines, making the results unreliable in court.

Judge Brennan agreed with this argument and excluded two years of breath test results.  His initial decision in the 9510 litigation excluded breath test results prior to September 14, 2014.  After this decision, the lead expert for the defense Thomas Workman discovery that he received different documents in his public records request than what was received during the discovery process.  It was reveled that 425 failed calibrations were never turned over to the defense.  It was this discovery violation that lead to the head of the Office of Alcohol testing being fired and the Commonwealth agreeing not to use breath test evidence until the violations were remedied.  This occurred in August of 2017.

It was as a result these discovery violations that Judge Brennan ruled that there should be independent oversight over the Office of Alcohol Testing.  By requiring the Office of Alcohol Testing to be accredited, Judge Brennan is holding the Office to external standard of scientific reliability.  To maintain its accreditation the Office of Alcohol Testing is subject to external audits.  Further, his requirement that all discovery be online was meant to create an atmosphere of transparency.  The Office of Alcohol testing was not being upfront with its discovery and honoring its requirement to provide exculpatory evidence.

What it means for those charged with OUI in Massachusetts?

Judge Brenann’s ruling means that the Commonwealth will have a major piece of evidence back in when prosecuting OUI cases.  Defense lawyers still have many ways to challenge this evidence.  Police must administer the tests in the proper manner and there are other scientific reasons why a breath test result may not be accurate for a particular defendant.

To read some earlier post on the Massachusetts breath test litigation you can click here.

You can also find Attorney DelSignore on Facebook to learn more about Massachusetts OUI Laws.

To read Judge Brennan’s decision visit the this link of resources to important DUI cases and materials.