On November 15, 2021, Judge Robert Brennan who presides over the statewide breath test litigation once again ordered the complete exclusion of breath tests from OUI prosecutions in the Commonwealth. The decision comes after lead attorney for the statewide consolidated breath test litigation Joe Bernard raised serious concerns during a statewide hearing about not only software problems impacting the scientific reliability of breath test, but about the Office of Alcohol Testing (OAT)—the office that has been designated to care for and maintain the breath test machines and the machines—and its continued failure to disclose potentially exculpatory evidence that could benefit defendants charged with OUI.
In the motion that led to Judge Brennan’s decision, Attorney Bernard argued for the suspension of the use of breath tests and that sanctions be issued against OAT. Specifically, Attorney Bernard argued that OAT recognized a software malfunction where the Draeger 9510 (the breath testing machine at issue in this litigation) produced illegal breath test results, and that OAT failed to take appropriate remedial measures or appropriately disseminate this information to the legal community or those defendants impacted by the malfunction. Attorney Bernard also argued that OAT had not disclosed any testing it has performed to determine the root cause of the problem and there remains a serious concern whether this malfunction has impacted the scientific reliability of the breath test result itself.
Attorney Bernard also argued that breath test results obtained by breath test operators who have not been certified were being used in criminal prosecutions and as a basis for a license suspension with the Registry of Motor Vehicles. This is significant because a breath test result is not admissible as evidence in an OUI case under G.L. c 90, § 24K unless the breath test operator is properly certified. Attorney Bernard went on to argue that only after significant adversarial action was taken against OAT did the laboratory disseminate any information pertaining to this issue and it remains unclear as to whether the impacted defendants have been notified.
During the statewide hearing held in October, Judge Brennan asserted that by requesting for the suspension of breath test results and sanctions against OAT, Attorney Bernard was making a “big ask,” Attorney Bernard responded by informing the court that this was a “big problem that deserves a serious response.” Judge Brennan ultimately held that the issues raised by Attorney Bernard “clearly require prompt resolution” saying that breathalyzer results undeniably are among the most incriminating and powerful pieces of evidence in OUI prosecutions. As a result, Judge Brennan ordered the statewide exclusion of breath test results pending further litigation.