OAT eDiscovery Portal and Discovery

Discovery Post Commonwealth v. Ananias: Making Clear What the State Must Make Available

In the landmark case of Commonwealth v. Ananias, the Massachusetts District Court ruled that breath test results could not be used as evidence in court until the Office of Alcohol Testing (OAT) had gone through a multitude of steps to ensure strict adherence to the proper maintenance of the machines (Draeger Alcotest 9510) and adherence to the rules of evidence. In its initial ruling, the Court held that OAT failed to calibrate the breathalyzers according to a standardized protocol, putting into question the reliability of breath test results for possibly thousands of defendants. In a subsequent ruling after it was uncovered that OAT had intentionally withheld court ordered and exculpatory evidence, the Court not only expanded its original order to exclude breath test results, it ordered additional serious sanctions against the Commonwealth in order to rebuild the public’s trust in our justice system.

Among the seven additional orders issued by the Court, most importantly, OAT was ordered to apply for and show a demonstrably substantial likelihood of obtaining accreditation from ANSI National Accreditation Board (ANAB), a non-governmental organization that provides accreditation services to public and private sector organizations around the world. The Court found accreditation necessary to provide OAT with third party oversight of the laboratory and independent confirmation that its practices are reliable. OAT ultimately obtained accreditation from ANAB on June 12, 2019.

The Court also required all OAT employees receive training on the meaning of exculpatory evidence and their obligations regarding discovery. Exculpatory evidence is that “which tends to justify, excuse or clear the defendant from alleged fault or guilt.” Black’s Law Dictionary. It is illegal under the Brady Rule not to bring forth evidence that could clear a defendant: Not only is the “suppression of withholding by the State of material evidence exculpatory to an accused is a violation of due process,” Brady v. Maryland, 373 U.S. 83 (1963), “the prosecution had a duty to inquire concerning the existence of scientific tests, at least those conducted by the Commonwealth's own crime laboratory.” Commonwealth v. Martin, 427 Mass. 816, 824 (1998) (emphasis added).

The Court further required OAT to develop a standardized discovery protocol in order to promote a standardized and professional method of responding to requests for discovery by defendants and District Attorney’s Offices. OAT has since authored a discovery protocol and has made it available on its eDiscovery Portal, a website that the Commonwealth has agreed to maintain in an effort to provide more transparency.

On July 29, 2019, the Court found that OAT was in compliance with its order for sanctions. The Court held that any breath test result calibrated on and after April 19, 2019 was presumptively reliable and can be used in the prosecution of OUI cases.

The OAT eDiscovery Portal

The eDiscovery Portal is a publicly available website that allows any registered user to access information regarding evidential breath testing. Registration is open to the public. The portal provides access to information including breath test records, breath test certification records, periodic test records, quality control documents for scales, solutions and thermometers used by the machines, protocols utilized by OAT, and training materials for operators of the breath test as well as those of officers in charge and certification.

Breath Test Reports

The eDiscovery Portal contains breath test reports that can be located either by entering a police station and a test date, or a breathalyzer serial number, test sequence number and a test date. The search will produce results for a period 6 months before and after the particular date entered. It will delineate whether the report entered a BAC level, if there was refusal to submit to a breath test, or if there was another reason that no BAC level was reported. Upon clicking an individual report to examine, the portal will show additional information relevant to that particular report.

Breath Test Certification Reports

The eDiscovery Portal also provides the Breath Test Certification Reports and History for the Draeger 9510 breathalyzers that OAT maintains. These certifications can be located by choosing a breathalyzer by serial number, or more specifically by serial number and certification date. These certifications will show the calibration, verification and adjustment data from the annual certification of the particular breathalyzer. This information can be compared to the Certificate of Calibration protocol to ensure that the calibration is in fact valid.

Instrument File History

The Instrument File History is a very useful folder of information pertaining to a particular breathalyzer. It provides information about completed calibrations, failed calibrations, the initial set-up of the breathalyzer, documentation from Draeger, the configuration of the breathalyzer, chain of custody documentation, and other miscellaneous files. This folder can be located by choosing the serial number of the breathalyzer. This information is important in order to identify whether there have been any repairs to the breathalyzer, whether there have been any firmware updates, and whether there have been any failed calibrations of the breathalyzer.

OAT Protocols

OAT has listed all of its protocols under reference materials. These protocols are crucial to examine to ensure that OAT is properly conforming to its own standards. An OUI attorney should be intimately familiar with the Certificate of Calibration protocol in order to examine a breathalyzer’s annual certification and calibration documents to ensure that a breath test result is valid.

OAT’s Quality Assurance protocol is also a very important protocol to become familiar with. This particular protocol sets forth standards for the evaluation of chemists, including proficiency testing, training and competency, practical exams, and other qualifications. The protocol sets forth standards for administrative and technical reviews of work, non-conforming work, corrective action reports, and investigations. It also delineates the need for the laboratory to perform validation studies of new processes and methods to modify existing procedures.

The portal also contains the OAT Breath Test Operator protocol and the Officer in Charge protocol. The Breath Test protocol describes the training that an officer undergoes if they are to administer any breath test to a motorist placed under arrest for OUI. The Officer in Charge protocol describes the training that an officer will undergo if they are assigned to maintain and care for the breathalyzer at the police station. This protocol teaches an officer in charge how to administer periodic testing of the breathalyzer and ensure its certification is current.

OAT and Discovery Beyond the eDiscovery Portal

Discovery Protocols

OAT has published its discovery protocols on their eDiscovery site. Defendants may request data, records and information not available on the public website. The protocol sets forth the following general provisions:

  • All requests for discovery must come to OAT through a DA’s Office if they are not in the form of a subpoena or court order.
  • Any document not available from the DA’s office as a result of OAT’s periodic data provisions and not available on the public on the eDiscovery Portal is subject to request, subpoena or court order.
  • Requested material will be sent to the DA’s Office unless otherwise specified in the request, subpoena or court order.
  • All such requests and related correspondence shall be retained by OAT and made available upon request.
  • OAT’s default deadline for production is 60 days, and any expedited requests must specify an alternate time frame and be approved by the OAT Section Supervisor.

Periodic Data Provisions to the District Attorney’s Office

According to its Discovery Protocol, OAT will periodically send raw, unredacted data records provided by the Draeger 9510’s to the DA’s Offices. This information is not available on the public e-Discovery website and includes:

  • Raw data relating to a certification of the instrument
  • Raw data generated in the field during a training breath test
  • Raw data generated in the field when a breath test is performed, terminated or refused by a subject
  • Periodic test data taken in the field by the Officer in Charge
  • CalCheck, ABA, calibration and standard certification tests generated by OAT
  • Any mistry information generated in the field
  • Diagnostic data generated during the pilot program
  • Message and watchdog records generated by the instrument
  • Curve data

Materials Provided Upon Request

Upon request, the following documents or materials shall be made available during discovery:

  • Curriculum Vitae of assigned analyst and technical reviewer
  • Proficiency tests for the assigned analyst
  • Quality assurance notes and records
  • Communication logs
  • Validation studies
  • Performance checks
  • Breath Test Operator training documentation
  • Portable Breath Test instrument information
  • OAT serum conversion and retrograde extrapolation documentation

Any item, document or record requested but not listed will be reviewed by Massachusetts State Police Legal Counsel along with technical personnel. Additionally, business record certification requests may come through the DA’’s office or in the form of a subpoena or court order. A copy of the documents, along with an affidavit from the Keeper of Records shall be provided so long as the request includes:

  • Assigned trial date and courthouse name and location
  • Defendant's name, date of breath test, serial number from the Draeger Alcotest 9510 used, docket number and the name and address of the requester.

The packet, upon completion, will be mailed using an outside delivery service to the requesting DA’s Office. The tracking number will be stored and made available upon request. Expedited requests may be emailed, and a hard copy mailed using the delivery service for non-expedited requests.

CHOOSE THE SUPPORT OF A KNOWLEDGEABLE ADVOCATE.

The past malfeasance of OAT is slowly being righted. The Draeger Alcotest 9510 is now approved for use as evidence in OUI cases, but there remain many defenses to breath test results. An experienced OUI lawyer can help you determine the best course of action for your circumstances. If you were previously convicted of operating under the influence or currently facing an OUI charge, it is absolutely imperative that you enlist the support of an experienced Massachusetts OUI lawyer. Our team has defended countless OUI cases and possess a thorough understanding of the state laws and legal system. When your personal liberties are at stake, you need the support of an aggressive lawyer who is committed to protecting your rights.
Contact The Law Offices of Joseph D. Bernard P.C. for a free case consultation!