Unreliable Breath Tests in Massachusetts

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. Attorney Bernard is the lead counsel in the statewide litigation, Commonwealth v. Ananias, that prohibited breath tests being introduced from 2011-2019. He has been working on this case as lead counsel for over six years. Attorney Bernard played an instrumental role in drafting and disseminating the 27,000 letters sent across the Commonwealth. 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.

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

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 Bernard Defense Team will be able to review your matter and determine whether there is a valid motion to vacate your plea or move for a new trial in your case. Contact us today!

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