Massachusetts Judge Excludes Results of Thousands of OUI Breathalyzer Tests

IF YOU WERE A DEFENDANT IN AN OUI CASE IN MASSACHUSETTS AND SUBMITTED TO A BREATH TEST PRIOR TO SEPTEMBER 13, 2015 THIS DECISION MAY AFFECT YOUR CASE.  IF YOU PLED TO AN OUI CASE IN MASSACHUSETTS DURING THESE TIME PERIODS BECAUSE OF A BREATH TEST READING YOU MAY BE ABLE TO REOPEN YOUR CASE AND PERHAPS GO TO TRIAL.

Sweeping Decision Issued on February 16, 2017 regarding the Breath Testing in Massachusetts

A Decision was issued today by the Honorable Judge Brennan In the matter of COMMONWEALTH v. EVANDO ANANIAS, CHRISTIAN FIGUEROA, AND OTHERS

This Decision addressed issues regarding a statewide consolidated MOTION TO EXCLUDE BREATH ALCOHOL CONTENT PERCENTAGE RESULTS USING THE DRAEGER ALCOTEST 9510 AND ANY OPINION TESTIMONY.

The consolidated defendants through their lawyers in this appeal raised an array of issues pertaining to Office of Alcohol (OAT’s) practices, ultimately arguing that the laboratory’s deficiencies impact the reliability of Massachusetts Alcotest 9510 test results to the point that they should be deemed inadmissible.

Although numerous sub-issues were discussed, the chief criticisms of OAT were reduced to four main areas: accreditation, measurement uncertainty, lack of traceability, and absence of protocols. The Commonwealth contended that these challenges pertain to the weight of the evidence rather than its admissibility.

Judge Brennan held that “[a]s to the first three, the Commonwealth may be correct; however, since they apply to laboratory practices that potentially impact all Massachusetts Alcotest 9510 devices, the Court felt it was prudent to address them in this litigation, as previously discussed. On the question of OAT protocols, the Court is convinced firmly that the existence, sufficiency, and standardization of laboratory procedures reflect scientific methodology, which squarely raises gatekeeper issues of reliability under a Daubert- Lanigan analysis.”  Citing Judge Brennan’s decision Page 27

One defense expert, Janine Arivisu, testified that the scientific community required written protocols for accepting the presumptive reliability of calibration laboratories. Judge Brennan held that standard clearly was not met. Through the vigorous cross examination from Attorney James (Jay) Milligan of Melissa O’Meara, the Technical Leader of OAT, it was clear that these protocols and procedures were not in place prior to September 14, 2014.

“Despite Ms. O’Meara’s attempt to impute some sense of orderliness and consistency to the manner in which the worksheets were created and catalogued, the Court does not accept the proposition that they functionally equated to written protocols. In the absence of written protocols, it cannot be assumed that any particular calibrator understood or routinely applied the proper standards in calibrating a device. Based upon the evidence presented, the Court finds that, although the necessary pieces were gradually falling into place as protocols steadily were developed, the Commonwealth has not shown that OAT had a scientifically reliable methodology for calibrating the Alcotest 9510 prior to the promulgation of the Certificate of Calibration Procedures for the Alcotest 9510 on September 14, 2014.” Citing Judge Brennan’s decision Page 30

This Decision will have a clear impact on every breath testing case prior to September 14, 2014 and perhaps tests through September 13, 2015.

IF YOU WERE A DEFENDANT IN AN OUI CASE AND SUBMITTED TO A BREATH TEST PRIOR TO SEPTEMBER 13, 2015 THIS DECISION MAY AFFECT YOUR CASE.  IF YOU PLED TO AN OUI CASE DURING THESE TIME PERIODS BECAUSE OF A BREATH TEST READING YOU MAY BE ABLE TO REOPEN YOUR CASE AND PERHAPS GO TO TRIAL.

IF YOU WOULD LIKE A CONSULTATION PLEASE CALL ATTORNEY JAMES (JAY) MILLIGAN TO DISCUSS YOUR OPTIONS. 781-878-1231 OR 1-888-OUI-ATTY