In the News Serving Clients From The Berkshires to Boston

In the News


Attorney Bernard says, "Here we go again."

News venues across the Commonwealth are taking interest not only in the Alcotest 9510 malfunctions brought to light last month, but their impacts on citizens. The malfunction occurred when reports of drivers' breath test refusals or failures were sent to the RMV without proper authorization. This authorization is the electronic signature of the administering officer, and is applied under the pains and penalties of perjury. Without this, the findings from the test are not valid in a court of law.

This malfunction also calls into question the reliability of the device. As Attorney Bernard states, "Time and time again this particular machine has shown issues and problems providing reliable results." Further offering that these machines are "dinosaurs" in measuring blood alcohol concentration, Attorney Bernard notes that across the country, not just in the Commonwealth, agencies are moving away from using them. To read the whole story, please follow this link.undefined


Attorney Bernard states, "Stop the Madness".

Just one year after the Office of Alcohol Testing (OAT) gained accreditation in compliance with a court order, they have released information that over 400 citizens have been illegally impacted once more in the course of breath testing. The court order followed years of litigation that uncovered gross negligence and malfeasance at OAT over an eight year period, affecting thousands of people. The new discovery announced Wednesday indicates that since 2011, the state's Draeger Alcotest 9510 breath testing machines have been malfunctioning and illegally transmitting reports to the RMV that have resulted in suspended licenses. These reports were sent without legally-required certifications by the administering officer, including the mandate that the officer submit information under the pains and penalties of perjury. OAT has not determined why the machine is malfunctioning, and has yet to investigate whether the malfunction affects the reliability of reported breath test results. Find the story here.


27,000 Mass. Drunken-Driving Convictions May be Tossed Out Due to Faulty Breathalyzer Machines, Lawyer Says

Massachusetts courts have ruled that the Office of Alcohol Testing (OAT) has been sufficiently overhauled and has earned accreditation from a national agenundefinedcy, which has paved the way for breath tests to be admissible in Massachusetts courts once again. This marks the end of one era and the start of another: Thousands of those who were convicted or plead guilty to charges due to breath test results may be eligible to seek a vacated sentence. Though this decision marks an end to the intense scrutiny the OAT was placed under due to its own misuse of equipment and mishandling of evidence, it is only the beginning for thousands convicted under previous practices, that according to Attorney Bernard, "had an enormous impact on the entire criminal justice system." For the full story, follow this link.

Blown Away: Why the Police Rely on Faulty Breathalyzersundefined

The news of the NYT's investigation of faulty breathalyzers has brought a lot of attention to this issue. On November 6, 2019, Attorney Joseph Bernard along with Jessica Silver-Greenberg, business reporter for The New York Times, and Jan Semenoff, forensic criminalist and editor of Counterpoint Journal, were interviewed live on air by Joshua Johnson of NPR about this widespread problem, where it started, and why it is important to everyday Americans. Listeners, including law enforcement personnel and concerned citizens, called into the show with questions and concerns. Attorney Bernard and the other participants responded to these messages during the show touching on subjects including public safety, issues of liberty, and the difficult task of balancing the two. It is surprising to most to learn of the breadth of this issue which is affecting tens of thousands of Americans and Canadians alike. To listen to the full interview, please follow this link.

These Machines Can Put You in Jail. Don't Trust Them.undefined

Lawyers across the country have been working with law enforcement and members of the scientific community to investigate the science and algorithms behind breath testing and breath testing machines designed to determine blood alcohol content. The issues they have uncovered are staggering. New York Times investigative journalists including Stacy Cowley and Jessica Silver-Greenberg caught wind of these discoveries and did a feature on the NYT docu-series titled The Weekly. Attorney Bernard has represented numerous individuals who have had their lives turned upside down by these faulty and inaccurate breath test machines. Attorney Bernard was a principal resource for the NYT reporters and is featured both in the article below, and Season 1, Ep. 18 of The Weekly, Guilt by Machine. The Weekly airs each Sunday evening on FX. You can find past episodes on-demand on Hulu and FX streaming. To read more about it, please follow this link.

A Bureaucratic Nightmare Amid Drivers License Suspensions

Due to clerical errors, a rash of individuals have been receiving notices of suspension of their drivers licenses. This can lead to countless hours of uncomfortable and confusing phone calls, actual suspension of their right to drive, and lost time and wages due to their inability to get where they need to go. To read more about it, please follow this link.

berkshire eagle

Sobriety Checkpoint in Worcester County

Massachusetts State Police have announced that they plan to set up a sobriety checkpoint somewhere in Worcester County starting Saturday, October 26, into the morning of Sunday, October 27. The exact time and location of the checkpoint has not been announced. To read more about it, please follow this link.


Attorney Bernard’s Insistence on Accreditation Reap Rewardsundefined

Since the beginning of the litigation, Attorney Bernard has argued that the Office of Alcohol Testing (OAT) should obtain accreditation. The OAT was the only branch of the forensic laboratory that was not accredited. Based upon Attorney Bernard’s work, the OAT is finally accredited and breath testing can resume according to the latest ruling from Judge Brennan in Commonwealth v. Ananias. The ruling states that breath test machines calibrated on or after April 18, 2019, may be used in court. Reporting on the story, the Boston Globe quoted Attorney Bernard saying “I think this is a success for every citizen who pays tax dollars… We deserve honesty, we deserve quality results… It’s transparent.” To read the full story click here.

Belchertown Lawyer Played a Key Role in Breathalyzer Caseundefined

Following the news that the Office of Alcohol Testing (OAT) received accreditation, the Daily Hampshire Gazette reached out to speak with the lead defense counsel in Commonwealth v. Ananias, our very own Attorney Bernard! The Gazette quoted Attorney Bernard as stating “people really need to recognize, if they have an OUI from (2011 until present) and it’s impacting a job application or a bank loan, there’s a mechanism to take that off their record now, because these breath tests have been tainted.” Individuals who were charged with an OUI that involved a breath test during that time which resulted in a plea or a trial should expect to receive notices in September and October that they may be eligible to have their cases overturned and get a new trial. Click here to read the full story.

After Board Signs Off on Way Machines Calibrated, Results of Breath Tests May be Admissible Again

Attorney Joseph Bernard was featured in an article written by the Berkshire Eagle regarding the Office of Alcohol Testing (OAT) being accredited by ANSI National Accreditation Board. Attorney Bernard was quoted stating “Year after year, the OAT remained the only part of the Commonwealth’s forensic laboratory that was not accredited.” Read the full story here.

State Police Lab Takes Step Toward Providing Breath Test Evidence

The Boston Herald wrote an article following the news that the Office of Alcohol Testing (OAT) has been accredited by ANSI National Accreditation Board. Attorney Bernard was quoted saying “The great news is, it appears as if the Office of Alcohol Testing has finally got their act together and is moving in the right direction.” We are now fighting for the release of a report that the letter of accreditation is referencing and what the scope of the accreditation is. Read the full story here.

New York Times with Attorney Bernard in Palmer District Court!

On May 23, 2019, the New York Times recorded Attorney Bernard’s Oral Argument in the Palmer District Court. This hearing was a motion to withdraw a guilty plea for one of our clients who pled guilty to an OUI in Massachusetts in 2017. At the time of this offense, our client submitted to a breath test and it was used as evidence against him in court. Due to Attorney Bernard’s work in challenging the reliability of breath tests in Massachusetts in the state-wide litigation case, Commonwealth v. Ananias, breath tests were deemed inadmissible between June 2011 and the indefinite future.

Our client's case fell between the time frame of the exclusion of breath tests and thus he has a right to retry his case. The New York Time was there to record this argument and see Attorney Bernard in action. Attorney Thomas Workman also testified during this hearing and he is one of the nation’s leading experts on breath tests. He also played a huge role as an expert witness in Ananias. Here are pictures of Attorney Bernard, Attorney Workman, Attorney Erica Bruno, and members of the New York Times.

New York Times Interviews Attorney Bernard on Behalf of Breath Test Litigationundefined

On May 22, 2019, Attorney Bernard was interviewed by the New York Times regarding his statewide breath test litigation, Commonwealth v. Ananias. The New York Times will be accompanying Attorney Bernard tomorrow, May 23, 2019, to the Palmer District Court, to witness a motion hearing to withdraw a guilty plea for one of our client’s who was convicted of an OUI in 2017 as a result of the use of the breath test.

Recent Projects Bring New Look to Downtown Springfield

Western Mass News approached Attorney Bernard in downtown Springfield when he was on his way back from the Springfield District Court. Attorney Bernard discusses the recent projects that have been occurring in Springfield to upgrade the new businesses and atmosphere. Go Springfield! Read the full story here:

I-Team: Massachusetts Judge Bans Use of Breathalyzer Tests In Court

22 News WWLP interviewed Attorney Joseph Bernard, lead counsel of Commonwealth v. Ananias, regarding the decision Judge Brennan made to ban breathalyzers tests in Massachusetts OUI cases until further notice. The Office of Alcohol Testing must show they they are likely to be approved of accreditation until breathalyzer tests can be used again. Attorney Bernard is quoted saying, "There are 7 different goals that the judge mandated they reach. They claimed that they had already reached them in court, but the judge disagreed and said no, you have to do certain things, and until you do these certain things, you're not going to be allowed to use breath tests in Massachusetts." Read the full story here:

Breathalyzer Results Banned From Being Used In Massachusetts Courts

Western Mass News reported on the decision made by Judge Brennan that affects OUI cases statewide in Massachusetts. Attorney Joseph Bernard is quoted saying, "It's huge because as we stand here right now, breath tests are not permitted to be introduced. That's indefinite until the Office of Alcohol Testing provides proof to this judge to show that they are going to receive accreditation." Click here to learn more.

Massachusetts Judge Bans Use of Breathalyzer Test In Court

WBUR News released an article discussing the decision made by Judge Brennan where he ruled that breath tests will continue to be excluded in OUI cases in Massachusetts until the Office of Alcohol Testing can show that they are likely to be succeed at accreditation. Attorney Bernard is quoted saying, "People go to jail, people lose their license, and the judge is essentially saying, if you're going to be putting liberties at risk, you better be precise. You better be accurate and the only way you're going to do that is to show accreditation." Read more here.


State Lab Must Show Progress For Breath Tests to be Used In Certain OUI Cases

Boston Globe reported that although there are some exceptions, breathalyzer tests cannot be used as evidence in drunk driving cases in Massachusetts. Attorney Joseph Bernard is ruling this as a significant victory, he is quote saying, "What it does is it protects the citizens, the courts, and the defense attorneys who demand fair and reasonable discovery practices." Click here to read the full article.

boston globe

Massachusetts Judge Bans Use of Breathalyzer Test In Court

The Office of Alcohol Testing must undergo major reforms in order for breathalyzer tests to be used in OUI cases in Massachusetts again as ordered by Judge Brennan. Read more here.


Breathalyzer Controversy Returns to Court

WWLP interviewed Attorney Bernard regarding the latest update in Commonwealth v. Ananias. Prosecutors have agreed to exclude breath tests from evidence from 2011 to 2017 in OUI cases in Massachusetts. However, Attorney Bernard wanted to extend this time period even further due to the calibration of the breath tests. On 22 News at 5:00 p.m., Thursday, December 13, 2018, there will be a feature on television regarding this. Click here to read the full story.

22 news

Another Delay In Hearing On Use of Breath Test Results

On November 6, 2018, Salem News posted the latest update in the statewide breath test litigation case, Commonwealth v. Ananias. This article discusses why the hearing has yet again been continued. The defense, Attorney Bernard, needs to obtain and review proficiency test results for workers at the lab of the Office of Alcohol Testing. Thus, the hearing has been continued to November 26, 2018. Please utilize this article to read more information.

22 news

Judge Mulling Over When Prosecutors Can Resume Using BT Results

Salem News recently published an article discussing the latest update in the statewide breath test litigation case, Commonwealth v. Ananias. It is still not decided when breath test results can be admitted into evidence for OUI cases in Massachusetts. Click here to read the full story.

salem news

Massachusetts District Attorneys Agree to Toss Breath Test Results

MassLive recently published a news article regarding the progress in Commonwealth v. Ananias. Attorney Bernard is quoted saying "To correct the deficiencies that exist, the (Office of Alcohol Testing) must become accredited." Click here to read the full story.

mass live

Breathalyzer Results Could Be Thrown Out In More Than 35,000 Massachusetts Cases

WBUR News published an article regarding the proposed agreement between defense attorneys, including Attorney Bernard, and district attorneys in Commonwealth v. Ananias. Although this agreement still needs to be signed off by Judge Brennan, you can read the full story here.


Delays May Soon Be Over in Scheduling Breath Test Cases

MassGov released an update regarding the breath test cases in Massachusetts. Now that both parties in Commonwealth v. Ananias has come to an agreement, the usage of breath test results in court may begin again soon. Read here for more.

Proposed Settlement Filed in Alcotest Case

Massachusetts Lawyers Weekly discusses the progress Attorney Joseph Bernard, among other lawyers, have done in Commonwealth v. Ananias. This article discusses the proposed settlement agreement that Attorney Bernard filed in the Concord District Court on August 14, 2018. Read here for the full story through Massachusetts Lawyers Weekly.

lawyers weekly

Tainted Breathalyzer Results Could Force New Trials

The Salem News discusses the possibility of new trials for breath test cases due to Commonwealth v. Ananias. Attorney Bernard is quoted by saying, "It was not the district attorneys who were withholding the material. They had nothing to do with this and when they found out, they rose up." Click here for further information.

salem news

Thousands Convicted of OUI Could Seek New Trials Under Tentative Deal on Breathalyzers

The Boston Globe released an update regarding the agreements between the defense attorneys and the district attorneys on the usage of breath test results in the courtroom. Due to the work done by Attorney Bernard in Commonwealth v. Ananias, there could now be a possibility of thousands of new trials for convicted OUIs in Massachusetts. Attorney Bernard claims that much work has been done, but there is still much more. Click here for more.

the boston globe

NYSP Breathalyzer Model at Center of 20,000 Case Controversies in Massachusetts

A New York reporter recently interviewed Attorney Bernard regarding the breathalyzer controversy in Massachusetts. New York State Police are currently still using the same breathalyzer that has been excluded from evidence here in Massachusetts. Click here to watch the interview and read more about this.

Researchers Say a Breathalyzer has Flaws, Casting Doubt on Countless Convictions

Attorney Bernard, among other researchers, was recently mentioned in an article regarding breathalyzers. He discusses the ruling of breath test results being "presumptively unreliable" for two years prior to September 2014. Click here to read more on this.

Lawyers Who Provide a Scientific Defense

  • Trained Breath Test Machine Operator

    Attorney Joseph D. Bernard is the only lawyer in Massachusetts to have completed the breath test training conducted by the state police.

  • Certified Field Sobriety Test Administers

    Our attorneys are certified administers of the field sobriety test by the National Highway Traffic Safety Administration.

  • Former Assistant District Attorney

    We understand OUI cases from both sides of the fence and know exactly how to defend our clients.

  • Unique Certification & Expertise

    Attorney Joseph Bernard is the only lawyer in Massachusetts to be certified by the international acclaimed Borkenstein drug and alcohol courses.

Meet The Law Offices of Joseph D. Bernard P.C.

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