The Kickham Comment - Boston Criminal Attorney Blog
As I’ve reported on previously in this blog, the office within the Massachusetts Department of Public Safety & Security that is responsible for the maintenance and annual certification of Breathalyzer machines used by police departments in Massachusetts – the Office of Alcohol Testing (OAT) – has for over two years been embroiled in a scandal over its inability to properly conduct alcohol breath tests in OUI/DUI cases. In fact, certain attorneys who regularly defend Massachusetts OUI/DUI cases discovered that patterns were emerging over two years ago with these breath test results, after they studied a variety of the alcohol testing worksheets that were provided to the court by OAT, Based on those suspicious test results, Springfield Atty. Joe Bernard filed a motion for sanctions (penalties) against the Commonwealth, citing the Commonwealth’s intentional withholding of exculpatory (i.e., potentially exonerating) evidence, on behalf of selected Massachusetts OUI/DUI defendants. The suit against the Commonwealth that these attorneys brought, alleged that OAT had intentionally withheld virtually all of the annual Draeger Alcotest 9510 certifications – some 432 of them – that had failed to produce passing results.
Stunningly, it was discovered that OAT was doing this all over the state. It’s important to clarify a key point here: None of the 13 separate county District Attorneys’ offices across Massachusetts appeared to be aware of what was being done by OAT, nor is there any evidence that any prosecutors cooperated with OAT to produce these false test results. Procedurally, it’s important to understand how breathalyzer tests are used in a Massachusetts DUI/OUI case: Once a police officer administers a breathalyzer test to a driver, if that breath test result indicates that the operator registered a .08 or higher Blood Alcohol Content (BAC), and the operator is then arrested and prosecuted for drunk driving, the breath test result becomes the key evidence in plea negotiations or trial. The annual certification is employed to make sure that the machine results are correct. What was discovered in the litigation surrounding the Draeger Alcotest 9510, was that OAT, for 20% of those certifications, had intentionally and widely withheld problem certification results, to heighten the likelihood of convictions. A central focus of this litigation were these withheld alcohol testing worksheets, which are supposed to provide a foundation for each breathalyzer test result produced by OAT. The litigation surrounding this issue was consolidated before a single judge of the District Court Department, Judge Robert Brennan, for ultimate resolution.
Let me make an important point here, as a Massachusetts OUI/DUI defense attorney: While I fight tooth and nail for all my criminal defense clients – in all kinds of criminal defense cases – I also believe that law enforcement has a right and a responsibility to keep us all safe when driving on the roads in Massachusetts. Every state has that right and responsibility. It’s very possible that you are alive and well and reading this post, because a drunk driver was pulled off the road at some point in your past, who might have otherwise hit you or a loved one. So I do not oppose reasonable laws that are enforced responsibly and legally, as they are intended to. But when government agencies intentionally break the law and falsify documents in order to convict people that might otherwise be proven innocent of a criminal charge, that is entirely unacceptable, and those responsible must be made accountable, and the entire system re-vamped to assure that future such actions do not occur.
I’ll discuss the latest important developments surrounding this controversy, and Massachusetts OUI/DWI charges, in my next post.