Motion to Vacate Serving Clients From The Berkshires to Boston

Springfield Motion to Vacate Lawyer

The Fallout of Breath Test Evidence: Motion to Vacate Plea or Motion for New Trial

If you were convicted of an OUI in Massachusetts and submitted to a breathalyzer that was calibrated between June of 2011 and April 18, 2019, you may be eligible to have your case reopened. The reason for this begins with Attorney Bernard’s work in the statewide litigation Commonwealth v. Ananias, the statewide litigation challenging the scientific reliability of breath test results in Massachusetts. The Court not only agreed with Attorney Bernard that breath test results from this particular time period were scientifically unreliable, it sanctioned the Office of Alcohol Testing (OAT) after it was uncovered by the late breath test expert Thomas Workman that OAT had intentionally withheld court ordered documents that showed that the breathalyzer devices were failing the calibration process.

As a result of this discovery, OAT was investigated by the Executive Office of Public Safety and Security (EOPSS). EOPSS released an investigative report finding that OAT made “serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded, which frequently failed to seek out or take advantage of available legal resources, and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions.” The EOPSS investigation further revealed that “OAT’s response to [the defense’s discovery] motions reveals a system that was haphazard at best, and which frequently failed to produce responsive documents that were in OAT’s possession.” Ultimately, the government agreed that OAT’s misconduct was not just negligent, but intentional.

Based upon this intentional misconduct, breath test evidence was excluded by the Court until OAT could show that it was in compliance with necessary orders to correct the serious lack of trust in the crime laboratory, including the requirement that OAT apply for accreditation. The Court found that OAT was in compliance with all court orders as of April 18, 2019. Thus, the Court held that breath test evidence from a breathalyzer that was last calibrated between June of 2011 and April 18, 2019 should be excluded in OUI prosecutions.

As a result of an OUI conviction, many defendants suffered a loss of license, were denied employment opportunities, were mandated to turn over firearms licensing, and are still subject to driver’s license restrictions such as an interlock ignition device. If you believe this pertains to you, The Law Offices of Joseph D. Bernard will be able to review your matter and determine whether there is a valid motion to vacate your plea or motion for a new trial in your case.

What happens after the Motion to Vacate Plea or Motion for New Trial is filed?

After the Law Offices of Joseph D. Bernard files a motion to vacate your plea or a motion for a new trial with the court in which you were convicted, it is up to a judge to determine whether to allow your motion. The judge will examine whether there was other overwhelming evidence of impairment even without the breath test result. Based upon the strength and significance of the newly discovered evidence about the serious problems with breath test results, we are confident in the success of these motions. However, it may be a lengthy period of time before the judge issues a decision.

The Motion to Vacate Plea or Motion for New Trial was allowed, now what?

Once your motion to vacate your plea or motion for a new trial is allowed, your case is officially reopened. This does not mean your case is automatically dismissed. Your case is then an active case in the court system and the Law Offices of Joseph D. Bernard can begin to litigate it as such. We would be able to fight for your innocence without the Commonwealth being able to use your breath test results as evidence against you.

If you believe this pertains to you, please contact the Law Offices of Joseph D. Bernard. Our law firm is the most experienced with these motions because our attorneys were directly involved in the statewide litigation that leads to the exclusion of breath test evidence.

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 internationally acclaimed Borkenstein drug and alcohol courses. Attorney Bernard is also the only lawyer in Massachusetts who is a member of the American Chemical Society.

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

The Pinnacle of Drunk Driving Defense

Client Reviews

See How We've Helped Other People in Your Shoes
    This is the man you want in your corner.

    “I'm here to tell you as someone who went through it and knows how scary it is when you are facing that black hole and approaching the event horizon and realize that you are about to lose everything you ever knew and fought for, this is the man you want.”

    - Former Client
    He truly is a top of the line attorney.

    “Listen to Atty Bernard when he gives the advice. His staff was great. Thank you, Joe, and keep up the good work.”

    - Avvo User
    Joe is well known and respected in the courtroom.

    “Joe is very knowledgeable and experienced with MA DUI laws. We worked well together to come up with the best solution for my case. The outcome was what I was hoping for and could not be more pleased.”

    - Former Client
    They kept me informed step by step.

    “I was extremely confident with the representation of the firm. Their rates are reasonable, their professional and they not only handled one state but two. They clearly knew the law and I would gladly use them again if I needed it.”

    - Former Client
    I always felt respected and part of the team.

    “I was very pleased with the expertise and professionalism with which Attorney Joe Bernard managed my case. It quickly became clear to me that he has the experience and respect of his peers necessary for effective litigation. I’ll always be grateful.”

    - Avvo User

Free Consultation

Fill Out the Form Below to Get Started
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.