As I’ve said many times, people often ask me how I can defend certain types of clients accused of crimes such as, for example, drunk driving or sex offenses. And I give them the same answer, every time: “Because my client might be innocent.”
Just yesterday, (August 23 2017,) the Massachusetts District Attorneys Association, the statewide association representing the 14 county-based District Attorneys Offices across Massachusetts, announced that until further notice, their prosecutors would no longer use alcohol breathalyzer tests (“breath tests”) in current or future Massachusetts OUI/DUI cases. Why? That’s where, as a Boston and Wrentham Massachusetts OUI defense attorney, my constant answer above, becomes “Exhibit ‘A’”.
Many people in Massachusetts are aware of the “Annie Dookhan debacle” a few years ago, impacting a large number of Massachusetts drug case prosecutions. Very briefly, about four years ago, it was discovered that a state chemist who worked in the state drug crime lab, who was responsible for the testing of suspected drugs that defendants were accused of possessing, using or dealing, intentionally falsified a large number of the drug tests in many cases, to assure that the defendants were convicted. As a result, eventually the Massachusetts Supreme Judicial Court ordered that thousands of Massachusetts drug crimes cases connected with the state drug crimes lab be dismissed. Now, a similar controversy has developed with breathalyzer tests evidence that is used in Massachusetts OUI cases.
It’s a long story, but the very short version is that back in 2015, some Massachusetts criminal defense lawyers who handle OUI defense cases, began to suspect that the primary breath test machine that police department s across Massachusetts use to conduct breathalyzer tests of drivers suspected of driving under the influence of alcohol, might be flawed and therefore producing inaccurate breath test results. That machine is called the “Draeger 9510 Alcotest.” In order to produce reliable test results for use in prosecuting OUI cases, these machines MUST be carefully calibrated at least once each year, to make sure that they are performing correctly and producing accurate test results of anyone taking a breathalyzer test. While these breathalyzer machines are used by hundreds of separate police departments across the state, testing of all Massachusetts breathalyzer machines – to make sure that they are functioning properly and producing accurate test readings, is conducted by a division of the Massachusetts State Police, called the Massachusetts Office of Alcohol Testing (“OAT”.)
Because of this concern, in 2015 the Chief Judge of the Massachusetts District Courts ordered that almost 750 Massachusetts OUI cases be consolidated with five separate criminal defense attorneys overseeing these case. This order was entered to allow the Massachusetts OAT to produce more detailed reports on the Draeger 9510 calibration testing, to determine whether or not these machines were functioning properly. At that time (in 2015) eight of the 14 District Attorneys’ Offices in Massachusetts announced that they would temporarily suspend the introduction of these tests results in ongoing OUI prosecutions that there offices were prosecuting. Subsequently in 2015, the state OAT then issued a report that claimed that out of 39,000 breathalyzer tests conducted by Massachusetts police departments on suspected drunk drivers from 2011 to 2015, only 150 of those test results were inaccurate due to mistakes that police departments made in calibrating the machines.
What follows is an example of intelligent and aggressive criminal defense work by the attorneys involved. The defense attorneys handling those 750 questionable cases, then began conducting discovery hearing about these breathalyzers. In response to a court order, the OAT produced to these attorneys approximately 2,000 calibration worksheets filled out by OAT chemists; these worksheets are produced supposedly each time a Draeger 9510 is calibrated. Almost all of those worksheets indicated that the machines produced accurate readings.
The defense attorneys doubted this information. So they kept digging. And lo and behold, what did they find? That approximately 430 additional tests performed on the breathalyzers, were missing the worksheets that are supposed to accompany the breathalyzer calibration checks. Where were these breathalyzer testing worksheets, and why had they not been produced to the attorneys? Then, a sudden development occurred – call it the “Smoking Gun”: In an unrelated drunken-driving case this month, three breathalyzer calibration worksheets had not been produced by the prosecution. When the judge ordered prosecutors to produce the worksheets on the machines, the defense attorney in the case discovered that the missing worksheets showed that the breathalyzers had produced flawed results.
Cue the proverbial light bulb going off: Lawyers representing the 750 consolidated cases then got a hold of the approximately 430 other missing worksheets, and reportedly 419 of those testing worksheets showed failed attempts at machine calibration. This very likely demonstrates that the Draeger 9510 had widespread calibration problems, across the state.
“They gave us just the information they wanted us to see,” said Thomas Workman, one of the attorneys representing the 750 cases that were consolidated in 2015 “They had an obligation to provide it, and they withheld it. I don’t see how it can be an accident.” Note: To be clear, it is my understanding that by the term “they”, these attorneys were referring to the Massachusetts Office of Alcohol Testing, not to any of the District Attorneys’ offices, nor to any of the Assistant District Attorneys prosecuting any of the cases involved. As of right now, the investigation appears to be centering on the state Office of Alcohol Testing. No misconduct or deception has been alleged on the part of any prosecutors in any of these cases.
All this brings us to the present: The statewide Massachusetts District Attorneys Association has issued a statement that their prosecutors across the state are withholding introducing any evidence of breathalyzer tests in existing and pending OUI cases, until accurate answers are produced as to why this information was apparently withheld. This means that District Attorneys’ offices will not include any breathalyzer evidence in trials or plea negotiations until the OAT resolves this issue. A spokesman for the Massachusetts State Police, which oversees the Office of Alcohol Testing, declined to comment on the allegations.
The final outcome could potentially affect 58,000 Massachusetts OUI cases prosecuted since 2011, which is when Massachusetts first began using the Draeger 9510’s breathalyzers with police departments across the state.
This story is just one answer to the question, “So, how can you defend someone accused of drunk driving?” Driving a motor vehicle with a blood alcohol content (BAC) above the legal limit, is and should be a crime. It is entirely unacceptable. But unless the state assures that the scientific evidence introduced at each case is reliable and accurate, then the system fails everyone.
I’ll update this issue as it develops. In the meantime, I’ll repeat what I’ve said so many times previously: Be smart: Don’t drink and drive. Period.