Breath test evidence has not been used in Court in Massachusetts since August of 2017.  The reasons for this was based on discovery violations that were uncovered during the 9510 Breath test litigation in Commonwealth v. Ananias.  In November 2018, Judge Brennan held a hearing to determine when breath test evidence could be used in Court following efforts of the Commonwealth to remedy its discovery violations.  Judge Brennan rejected the Commonwealth’s proposal that would have allowed it to use all breath test after August 2017 and also rejected the defense proposal that breath test evidence should not be used until the OAT becomes accredited. His decision was a victory for the defense as his seven criteria require the OAT to implement standards consistent with the scientific community and have transparency throughout their processes.  

Judge Brennan set forth seven criteria that the Commonwealth must show has been satisfied prior to continued use of breath test evidence in Court.  These seven criteria, including the following:  

1. That the OAT has filed an application for accreditation with the ANAB that is demonstrably substantially likely to succeed; The ANAB is a national accreditation board for scientific labs that has to confirm to the ISO standards.  This will subject the OAT to annual audits and oversight by an independent entity.  
2. that the OAT’s accreditation application has been uploaded onto the eDiscovery portal; 
3. that the ANAB Accreditation manual is available for viewing on the eDiscovery portal.  
4. that the OAT has promulgated discovery protocols consistent with those employed by the State Police case Management Unit, including a definition of exculpatory evidence and an explanation of its obligation pursuant to such evidence; or, in the alternative, that the CMU is responsible for processing OAT’s discovery.  
5. The OAT protocol has been uploaded to the eDiscovery portal; 
6. that all the OAT employees have received training on the meaning of exculpatory information and obligations relating to it; and 
7. that all written materials used to train OAT employees on discovery, and particularly on exculpatory evidence, have been uploaded to the eDiscovery portal.  

Judge Brennan’s decision leaves open the possibility that the 9510 litigation could be reopened based on the newly discovery evidence that has been provided.  

History of the 9510 Breath Test Litigation 

Judge Brennan decision came about as the result of consolidated litigation concerning the accuracy of the breath test machine.  After the Massachusetts Supreme Court decision in Commonwealth v. Camblin I, the SJC indicated that defendants are entitled to a hearing on the scientific reliability of the breath test.  The Court consolidated that litigation before Judge Brennan.  Judge Brennan issued his decision on February 16, 2017.  That decision rejected all of the scientific challenges to the accuracy of the breath test, but excluded breath test evidence for a two year period based on the fact that the annual calibration and certification was not done with a reliable method prior to September 14, 2014.  Following that decision, defense lawyers discovery that the OAT had not provided all of the documents in the original 9510 litigation when it received a greater number of documents through public record requests.  

After a motion for sanction was filed on August 19, 2017, the Commonwealth stopped attempting to admit breath test evidence in all cases until it resolved its discovery violations.  Over tens of thousands of documents were provided to defense lawyers that were never provided during the two years of the 9510 litigation.  

Judge’s Brennan’s decision appropriately addressed this egregious discovery violation that he found to be intentional.  By essentially requiring the OAT to be substantially likely to meet the accreditation requirements, Judge Brennan is ensuring independent oversight to the Office of Alcohol Testing to ensure reliable evidence in Court.  Breath test evidence is presumed to be reliable by jurors hearing this type of evidence and this decision acknowledges that it should not be heard in court unless the Commonwealth can comply with its obligation to provide discovery and exculpatory information to defense lawyers.  

To learn more about Judge Brennan’s decision and its implications for those charged, feel free to contact Attorney DelSignore by phone or text at 781-686-5924 or on his Facebook or Twitter pages.