New Jersey Supreme Court uphold the exclusion of over 20, 000 breath test after temperature probe not performed in the case of State v. Cassidy.  

The New Jersey Supreme Court decision is important for OUI lawyers in Massachusetts and throughout the country as the Court attributed great weigh to scientific standards of accuracy when deciding whether to permit the breath test to be offered into evidence.  The New Jersey Supreme Court upheld the decision of a Special Master who wrote a 200 page decision finding that the failure to use the temperature probe made New Jersey’s breath tests scientifically unreliable.

The problem was discovered when it was revealed that Marc Dennis a coordination in the Alcohol testing until did not use the temperature probe and falsified documents that he had done so.  The issue to come before the Court was whether the failure to conduct an independent temperature probe rendered the results scientifically unreliable.

Should the Office of Alcohol Testing in Massachusetts responsible for calibrating and certifying the breath test be an accredited lab?  This is the next issue before Judge Brennan in the Massachusetts breath test litigation in the case of Commonwealth v. Ananias.

Judge Brennan recently granted the defense request for a hearing on this issue in the Ananias litigation.  The defense has requested that prior to the continued use of the breath test in Massachusetts that the OAT should seek accreditation.  In May of this year, I attended a seminar called Serious Science at the University of Texas Arlington Laboratory which was a five day program that focused on many of these scientific standard that will be at issue in the accreditation motion hearing.  

What does Accreditation mean?  

Why you may be able to vacate an Old OUI conviction in Massachusetts?  For the past two years, over 30 DelSignore Law clients have been involved in the breath test litigation in Concord District Court.  It was a 6:00 meeting with myself and a group of Massachusetts OUI lawyers where we discussed the upcoming litigation regarding the breath test source code.  At DelSignore Law, we initially joined approximately 30 clients to the litigation who took breath tests.  As the breath test litigation took additional time, more clients were joined to this statewide litigation.

The litigation took about two years, as every aspect of the machine was tested by the defense.  Judge Brennan ultimately ruled that the breath test had a reliable source code, that it was specific enough for alcohol and that the partition ratio was scientifically reliable.  He essentially rejected all of the defenses scientific attacks on the machine.  However, he made a major ruling that resulted in two years of breath tests being excluded from evidence.  Those were tests prior to September 14, 2014.  In his original ruling, the results were only presumptively excluded meaning that the Commonwealth could seek to introduce them. Ultimately, the breath tests were excluded in all of our cases that were part of the litigation as the Commonwealth was never able to meet this burden in court to admit the test results.

https://www.youtube.com/watch?v=n-9A_7l5Vkw

Since August of this year, breath test evidence has not been used in Massachusetts as a result of discovery violations that occurred during the Alcotest 9510 litigation in the Concord District Court that was heard before Judge Brennan.  Now New Jersey, has also had an issue impacting breath test evidence Statewide.  New Jersey uses the same Breath test used in Massachusetts.

Nearly 20,000 DWI cases with breath test results are currently on hold in New Jersey after a State Police Sergeant was accused of incorrectly calibrating the breath test machines used in police departments across the state. The issue arose out of a lawsuit filed in federal court by a woman who was convicted in 2016 of DWI after blowing a breath test reading of .09.

The Attorney General’s office in New Jersey has charged Sergeant Marc Dennis with records tampering, arguing that he overlooked and incorrectly handled the Alcotest breath test machine in the 6-month recalibration of the machine. All of the Alcotest instruments produced and manufactured by Draeger Safety Diagnostics were required to undergo the said 6-month recalibration.

Massachusetts breath test evidence not being used in Court as the Head of the Office of Alcohol Testing was fired Monday.  Melissa O’Meara, the head of the Massachusetts Office of Alcohol, was fired Monday amid an investigation which uncovered that the office was withholding evidence of breath test machines that were improperly calibrated. The 126 page report cultivated by public safety officials stated that the withholding of such evidence was done intentionally and was not the result of a big mistake.

O’Meara was the technical leader of the Office of Alcohol Testing and had the responsibility of certifying the reliability of the breath tests submitted by defendant’s under arrest for operating under the influence of alcohol. Melissa O’ Meara worked with the Massachusetts State Police for nearly a decade.

The Massachusetts Office of Alcohol Testing oversees all of the states breathalyzer machines. They ensure the machines are up to date, and are, at all times, functioning and calibrated properly. The information that O’Meara was withholding is information that could have been hugely helpful to defense attorney’s and their clients. The report concludes that he Massachusetts OAT “made serious errors in judgement” in regards to handling requests made by defense attorneys in their requests for discovery.

The Massachusetts Appeals Court ruled today that the breath test operator does not have to watch the defendant to be in compliance with the 15 minutes observation period.  This ruling is contrary to the regulations requiring that the breath test operator observe a defendant for 15 minutes.

This decision arose out of a motor vehicle homicide case and is likely to be appealed.  The Appeals Court’s decision is contrary to the regulations and disregards the fact that a breath test operator has special training to determine whether someone is under the influence of alcohol.  The decision of the Appeals Court is Commonwealth v. Leary.

The burden of the Commonwealth to prove compliance with the 15 minute observation period is not very difficult.  A breath test operator should be able to watch the person taking the test for 15 minutes.  There are a lot of issues with the reliability of breath test machines that are being litigated as part of the consolidated litigation before Judge Brennan.  It was recently revealed that there were serious discovery violations during this litigation.  To lessen the requirement of admissibility was an unfortunate decision for the court when the regulation could not be more clear.  As a Massachusetts OUI Lawyer, this decision can be distinguished; it appears as though the Court may have been making inferences from the video in the case.  There is no indication from the opinion what role the other officers had during booking.  If this case is affirmed, it can be distinguished based on the facts this decision was based on.

This week there will be two significant hearings on breath testing.  The SJC will hear oral argument in the case of Commonwealth v. Camblin.  This case has been at the SJC before; in the first Camblin decision, the SJC held that a district court judge was wrong to deny the defense as hearing on the scientific reliability of the breath test.  At the time of the decision, the breath test being used was the Alcotest 7110.  The case was remanded back to the district court judge for a hearing on whether the Alcotest 7110 was scientifically reliable.  The judge concluded that it was scientifically reliable, rejecting a number of defense challenges to the accuracy of the machine.

The Camblin decision opened the door for the current litigation regarding the Alcotest 9510.  In response to the Camblin decision, defense lawyers filed motion to exclude the breath test arguing that the machines were not scientifically reliable.  The district court judge consolidated this litigation before Judge Brennan to resolve all issues regarding the scientific reliability of the Alcotest 9510.  That litigation expanded over two years; Judge Brennan concluded that the Alcotest 9510 was scientifically reliable, but found that the Office of Alcohol Testing did not have a scientifically reliable method to annually certify the machines prior to September 14, 2014.  As a result he made all tests prior to that date presumptively excluded.

That ruling resulted in district court judges holding hearings on whether the Commonwealth could prove that the analyst from OAT followed a reliable method.  Judges were reaching different decisions on this issue.  Recently, the Commonwealth stopped using all breath test results after it was discovered that the OAT failed to turn over 400 documents that were ordered to be produced as part of the litigation.  The hearing this week will address what remedy is afforded a result of this discovery violation. District Attorneys are investigating what occurred and have not used breath test evidence since this violation was uncovered.  As a Massachusetts OUI Lawyer, I would expect Judge Brennan to order that test results cannot be used at all prior to September 2014 as a remedy for the discovery violation.  As to cases outside of the period of the consolidated appeal, which would be case after September 14, 2014, these may be impacted but the discovery violation depending on the reason for the violation and whether any particular analyst had a role in the failure to disclose the exculpatory evidence.

For the past two years, there has been extensive litigation about the reliability of the breath test.  Judge Brennan consolidated all issues pertaining to the accuracy of the breath test in one hearing.  Judge Brennan rejected all challenges to the scientific reliability of the machine, but found that the Office of Alcohol Testing did not have reliability procedures to conduct the annual certification.  As a result he presumptively excluded two years of breath testing between 2012 and September 2014.

Some district attorneys office did not attempt to admit the results; while others, pursuant to the decision attempted to have the Office of Alcohol testing overcome the presumption of exclusion by testifying that they followed a reliability procedure at the time.   In an article in the Boston Herald, by Bob McGovern discusses a motion that was recently filed to be heard by Judge Brennan that could result in exclusion of thousands of breath tests.

Following the litigation, attorneys continued to review the documents provided by the Office of Alcohol Testing to determine if all data was provided.  Thomas Workman an expert of breath testing, reviewed the documents and discovered that the Office of Alcohol Testing did not provide all worksheets.  Workman filed Freedom of Information Requests and discovered that all worksheets were not provided pursuant to Judge Brennan’s order.  A motion filed in Concord District Court alleged that 89% of the withheld worksheets were exculpatory.  The defense is arguing that by failing to provide the worksheets, that the Commonwealth undermined the ability of the defense to challenge the reliability of the breath test machine.  The litigation took 2 weeks of court time and was a substantial cost to tax payers.  To have evidence withheld that was ordered to be produced undermines the integrity of the Court process and litigation.  I would expect Judge Brennan to schedule an evidentiary hearing to determine why the worksheets were not produced.  This would involve further testimony by the Office of Alcohol Testing and possibly the district attorneys involved in handling the litigation.

It was a partial victory for Massachusetts OUI Lawyers as the judge overseeing the Stateside breath test litigation, ruled that the breath results shall be excluded if the machine was calibrated prior to September 14, 2014, based on lack of standards and procedures for conducting the annual certification.  The Judge found that the lack of written guidelines and documented notes regarding how the machines were certified means that the Court could not find that these breath tests results were scientifically reliable.  The Judge found that since there were not standard procedure for calibrating the machines, that the court could not find that it was done properly based on the testimony from the Office of Alcohol Testing that procedures were followed in an informal way and were followed despite lack of documentation.  The Court found that the Commonwealth did not provide evidence that OAT had a reliable lie way to calibrate the breath test device as part of the annual certification prior to September 14, 2014 when it promulgated the Certification and Calibration Procedures.  Accordingly, the judge held that any breath test device certified prior to September 14, 2014 cannot be said to be scientifically reliable.  The judge did leave open the possibility that the Commonwealth could demonstrate to a judge that a particular machine was accurately calibrated.

While this aspect of the ruling was in favor of the defense, the Judge sided with the Commonwealth on the major challenges to the breath test.  The judge found that the Alcotest source code was scientifically reliable, rejecting numerous challenges by the defense to its accuracy.  Since the judge’s findings regarxines the credibility of witnesses was a factual finding, the Massachusetts Supreme Judicial Court would likely give those findings deference and uphold the trial judge.

Breath test cases in Massachusetts have been stayed since the litigation began in August of 2015.  The split ruling may make an appeal less likely, though I would still expect an appeal.  Since the judge’s ruling does not impact pending cases and hold that the machine is reliable, the ruling excluding breath test results is limited to a confined number of cases. I think the SJC would uphold the decision as the portion excluding the results was based on a complete lack of evidence of certification procedures.  The judges in the district court have been anxious to get the breath test cases resolved; and did not seem to be contemplating months more of delay in this litigation.

When is a person being investigated of a crime entitled to a lawyer?

The determination of whether someone being accused of a crime is entitled to a lawyer depends on whether the court determine that the prosecution is at a critical stage in the process. The United States Supreme Court in a case called Kirby v. Illinois, ruled that the Sixth Amendment right to counsel does not attach until the state beings the adversarial process against an individual. The Court defined this as a formal charge, preliminary hearing, indictment or arraignment. The Massachusetts Supreme Judicial Court, interpreting Article 12 of our State Constitution declined to adopt a more expansive view of when the adversarial process beings. The Court found that because the decision whether to take a breath test arises before a formal complaint it issued, that there is no right to counsel under the Sixth Amendment.

The SJC stated that the decision whether to take or refusal a breath test is an important tactical decision, but that because this decision occurs at the evidence gathering stage it is not a critical stage in the process. The Court affirmed that its decision in Commonwealth v. Braelton is still good law despite the change to Massachusetts OUI laws with the per se offense.