Commonwealth’s Motion to Admit Breath Tests Allowed for all Alcotest 9510 Machines Calibrated and Certified On or After April 18, 2019

Yesterday, July 30, 2019, the Court issued its decision to permit the Commonwealth to use breath test results in the prosecution of OUI defendants at trial after a showing that the Office of Alcohol Testing (“OAT”) has complied with all 7 of the Court’s orders, despite the Court’s serious concerns that OAT has “inspire[d] little confidence in [it]s ability to conduct itself as a public institution or its willingness to fully embrace change to its guarded, uncooperative ways.” In light of the fact that the OAT had intentionally withheld court ordered and exculpatory evidence from the consolidated Defendants in Commonwealth v. Ananias, the statewide litigation challenging the reliability of Alcotest 9510 breath test results, the Court imposed severe sanctions against the government to remedy the due process violations suffered by the consolidated Defendants and to instill public trust in the justice system.

After hearing and upon consideration of the parties’ agreement to expand the Court’s original order to presumptively exclude a class of breath test results from evidence, the Court ordered the indefinite exclusion of breath test results until the Commonwealth was able to demonstrate the following:

1. that OAT has filed an application for accreditation with ANAB that is demonstrably substantially likely to succeed;

2. that OAT’s accreditation application has been uploaded onto the eDiscovery portal;

3. that the ANAB Accreditation Requirements manual is available for viewing on the eDiscovery portal;

4. that 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 the obligations pursuant to such evidence; or, in the alternative, that the CMU is responsible for processing OAT’s discovery;

5. that OAT’s discovery protocol has been uploaded to the eDiscovery portal;

6. that all OAT employees have received training on the meaning of exculpatory information and the 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.

The Commonwealth filed a motion to admit breath test results as evidence in the prosecution of OUI cases with a showing that OAT has complied with all 7 of the Court’s orders. The parties were in agreement with the Commonwealth’s arguments with respect to Orders 2 through 7. The only issue for the Court’s consideration was the date that OAT was able to show that its application for accreditation was demonstrably substantially likely to succeed in obtaining accreditation.

OAT filed its application for accreditation on February 28, 2019. The Commonwealth, in previous filings, admitted that the application alone was not enough to demonstrably show that OAT was substantially likely to succeed in obtaining accreditation. OAT subsequently received an approving written accreditation assessment on June 12, 2019, which was not disclosed or turned over to the consolidated Defendants for almost a month after its issuance. OAT ultimately received accreditation on June 13, 2019. The Commonwealth argued that although the Court required it to show that OAT’s application for accreditation was demonstrably substantially likely to succeed, the fact that it ultimately obtained accreditation and received an approving accreditation assessment retroactively demonstrates that its original application was likely to succeed on February 28, 2019. While the consolidated Defendant’s argued that the Court should not consider the approving assessment to act retroactively, the Court agreed with the Commonwealth and held that OAT’s application was demonstrably substantially likely to succeed on February 28, 2019.

Although the Court permitted the Commonwealth’s request, it expressed its serious concerns that OAT’s failure to provide the written accreditation assessment for almost a month “inspires little confidence in OAT’s ability to conduct itself as a public institution or its willingness to fully embrace a change to its guarded, uncooperative ways.” In fact, the Court stated that imposing further sanctions “holds some appeal.” However, in light of OAT’s ultimate accreditation and compliance with the remaining court orders, the Court decided against any additional sanction.

Furthermore, despite the parties’ agreement to expand the Court’s original order to exclude breath test results based upon the calibration and certification date of the Alcotest 9510, the Commonwealth now argued that the Court should look to the date the breath test was administered. Ultimately, the Court agreed with the consolidated Defendants and ordered that the exclusion of breath test results is to be based upon the calibration and certification date, not the date the breath test was administered.

Ultimately, the Court found that OAT was in compliance with all Court orders as of April 18, 2019. Thus, the Court held that “it is hereby ordered that the Commonwealth’s Motion to Admit Breath Tests is Allowed for all Alcotest 9510 machines calibrated and certified on or after April 18, 2019.

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