UPDATE – Part Two of Two: Massachusetts Judge Extends Exclusion of Alcotest 9510 Breathalyzer Evidence, Until Commonwealth Cleans Up Its Testing Protocols

In my immediately preceding post on this subject, I discussed the background of how it was discovered that a high number number of breathalyzer test results in Massachusetts OUI/DUI cases across the state, were tainted by failures by the Massachusetts Office of Alcohol Testing (OAT) to either make sure that their testing equipment was calibrated properly, as well as that office intentionally withholding exculpatory evidence in a variety of OUI prosecutions. All this litigation began back in 2015, and a decision was ordered in February 2017, which mandated that breath test results prior to September 2014 be presumptively excluded at OUI prosecutions in cases within the affected date range, since OAT had not established written protocols for the annual certification of the Drager Alcotest 9510 units, which are the most common breathalyzer machines used by police departments across Massachusetts. When the attorneys who brought the suit discovered that the court did not have the exculpatory documents from the OAT when the February 2017 ruling was made, the defendants’ attorneys filed a motion to re-open the case, and consider what sanctions against the Commonwealth were appropriate. Judge Brennan then asked the parties to meet and try to negotiate a resolution to the motion, and a settlement was negotiated, signed by all prosecutors offices, and accepted by the court in May of 2017.

But the settlement agreement was incomplete, as the main issue was how far back in time OAT test results were going to be presumptively excluded from cases, and when in the future OAT test results would be ruled legally admissible again. On January 9 2018, the judge overseeing the case, referencing the agreement of the Commonwealth and the attorneys who brought the case forward on behalf of various Massachusetts OUI defendants, enlarged the period of time that Alcotest 9510 results were to be retroactively excluded from prosecutions – this enlarged period of time was previously extended back to June 2011, when the Drager Alcotest 9510 was first introduced for use in Massachusetts. However, the parties could not agree on a forward-looking end date, after which Alcotest results would be admissible in OUI/DUI cases.

The Commonwealth wanted the exclusion end date to be August 31 2017, which was the date that the Commonwealth produced all of the “Failed” or “Incomplete” testing worksheets to defense attorneys; these were the documents that first indicated something was awry with OAT testing. The attorneys who brought this suit, in contrast, wanted the end date to be a future date that OAT finally secured required accreditation from the scientific board that develops such chemical testing protocols – ANSI-ASQ National Accreditation Board (ANAB) – which the OAT still hasn’t secured. The two sides agreed to submit the decision to the court, and to be bound by its decision, and Judge Robert Brennan issued his decision earlier this week, Jan. 9. His decision ruled that the exclusion period previously agreed to by the parties – during which OAT test results cannot be admitted into evidence in Massachusetts DUI/OUI cases – will be extended indefinitely until the following actions occur:

1. OAT must demonstrate to the court that it has filed an application for accreditation with ANAB that shows it is demonstrably substantially likely to succeed;
2. OAT’s accreditation application must be uploaded onto the eDiscovery portal, which is used by courts and attorneys for case management purposes; The ANAB Accreditation Requirements manual must also be made available for viewing on the eDiscovery portal;
4. The OAT must promulgate discovery protocols consistent with those employed by the State Police Case Management Unit, including a definition of exculpatory evidence and an explanation of the obligations pursuant to such evidence; or, in the alternative, declare that the CMU is responsible for processing OAT’s discovery;
5. OAT’s discovery protocol must be uploaded to the eDiscovery portal;
6. All OAT employees must be proven to have received training on the meaning of exculpatory information and the obligations relating to it; and
7. All written materials used to train OAT employees on discovery, and particularly on exculpatory evidence, must be uploaded to the eDiscovery portal.

None of these benchmarks have been met as of the date of this publication (January 17 2019). If and when all of these requirements have been met, however, the Court may still, upon motion of the the attorneys who brought this suit on behalf of Massachusetts OUI defendants, reinstate the period of presumptive exclusion of breathalyzer tests if OAT fails to update the progress of its application for accreditation on the eDiscovery portal, or otherwise fails to make good faith efforts to gain accreditation.

As I’ve said before, the fact that I’m a Massachusetts OUI/DUI arrest lawyer, doesn’t mean that I don’t want the streets and roads of Massachusetts to be just as safe as everyone wants them to be. We do need police patrols and drunk driving checkpoints. I want to be just as safe as anyone else from a drunk driver, and we need trained, competent law enforcement that can maximize the safety of our roads. But when law enforcement agencies such as Massachusetts OAT operate as an island unto themselves, without appropriate training, and intentionally withhold or falsify documents in order to convict people so that they can supposedly show that they’re “doing their job”, that is when & where the whole system must be policed itself to assure that justice is, indeed, served fairly. Let’s hope that will now result, with this most recent judicial decision providing necessary oversight.