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.

When a driver is arrested for OUI, Massachusetts OUI law requires the officers to deliver a citation to the suspect immediately.  If there is a delay in issuing the citation, dismissal may be the appropriate remedy.  In the case of Commonwealth v. Richard O’Leary, the SJC reversed a lower court’s judge’s decision dismissing an OUI complaint alleging serious bodily injury.  The Court discussed the three circumstances where the Court would excuse a delay in issuing a citation.

  1. When the violator could not have been stopped;
  2. When additional time was reasonably necessary to determine the nature of the violation.

The Massachusetts Supreme Court ruled today in Commonwealth v. Thomas Gerhardt that field sobriety tests are admissible for an OUI marijuana, but cautioned that jurors cannot rely on these tests in and of themselves to find someone guilty or impaired by marijuana. The model jury instruction drafted in the opinion addresses the concerns that jurors will assume FST are accurate for marijuana as for alcohol.  The SJC expressly tells jurors that there is no correlation between performance on field sobriety tests and impairment by marijuana.

Additionally, the SJC found that officers cannot testify as to their lay opinion regarding impairment by marijuana as the scientific community has not developed any consenusus on the signs showing impairment by marijuana.

In an article from Chris Villani of the Boston Herald, the SJC was described as splitting the difference.  While that is a fair assessment of the decision,  I think the cautionary jury instruction will greatly reduce the value of the field tests to a jury, so while admissible, those assessments, as the Court refers to them, should have diminished weight in the eyes of the jury.  Further, the exclusion of lay opinion as to impairment leaves the jury without any testimony tying the observations to impairment from marijuana directly from the officer.  That is a significant benefit to the defense and based on the lack of scientific agreement on the signs of marijuana impairment, is a step forward in ensuring a defendant gets as fair trial.  The Gerhardt case was one where DelSignore Law submitted an amicus brief on behalf of the National College of DUI Defense on behalf of the defendant.

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.

During a recent motion hearing in Springfield Massachusetts, a murder defendant took the stand claiming he was too high on PCP-laced marijuana to understand the miranda rights that were read to him by the arresting officers. The defendant  Lee Rios said that he only agreed to sign the Miranda warning because he wanted to get information from the police and, without signing, the police would not talk to him.

The Massachusetts Supreme Court has noted that the four warnings that constitute miranda are not to be changed, but that the exact words in which the essential information should be conveyed has not been dictated. As long as the miranda rights are reasonably dictated to the person being charged with a crime, the Supreme Court recognizes the warning as valid. If the officer fails to make the miranda warnings clear to the individual or if the officer fails to give the defendant in custody all of the required Miranda warning than the warning is technically incomplete.mirandawarninginfographic-228x300

However, Lee Rios claimed he simply could not understand what the officer was telling him because he was high on marijuana that was laced with PCP. In order to support this claim, the defendant pointed out the “weird noises” he was making during the interview with officers; noises he makes only when he is under the influence of PCP. During cross examination by the district attorney, it was made evident that Rios knew he could wait for a lawyer and that he did not have to talk to the police at all. Rios, a 24-year old man from Springfield is charged with the 2015 murder of an 18 year old Kenneth Lopez. During the interview with police, Rios told them he was a 6 or 7 on a scale of how high he was, with 10 being the highest variable.

Gun charges against a Holden man were recently dismissed as the Massachusetts State Supreme Judicial Court ruled that the search warrant that was issued lacked probable cause and was ultimately invalid. This comes after the defendant Steven Mora filed a motion to suppress the fruits of the search, which uncovered a handgun, a magazine, and ammunition, arguing that the search warrant lacked probable cause.

The legal standard for issuing a search warrant is probable cause. To establish said probable cause, the police must submit an affidavit establishing facts surrounding the case and a clerk magistrate will conclude whether to not the items that the police are requesting the warrant for are related to the criminal activity that is under investigation. The defendant, Steven Mora, argued that the search warrant for the safe was improperly issued and the affidavit prepared by the Worcester Police Department failed to establish the necessary probable cause. The police were conducting surveillance in an area known to police for frequent drug transactions, when they observed the defendant approach a drug-dealer and make what they believed to be an illegal purchase.

Mora, the drug dealer, and an unidentified woman entered a car and eventually left the parking lot; shortly after the police pulled over the vehicle and conducted a pat-frisk of Mora and a inventory search of the vehicle. The search led to the discovery of a small safe in the backseat of the vehicle which the police confiscated. Because the police did some research and uncovered that firearms are typically stored in a similar safe to the one found in the backseat, the police prepared & presented an affidavit to the clerk magistrate. The affidavit clearly established probable cause that drug transactions did occur, but the affidavit, argued the defendant, did not connect the drug dealing or any other criminal activity to the safe found in the defendant’s motor vehicle.

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.

The Massachusetts Appeals Court ruled last Thursday to uphold the conviction of the Brockton man who killed a woman in a fatal car crash and injured nearly 8 others. In its decision, the court stated that the defendant should have known he was creating a strong likelihood of death of another person based on his mere actions; he led the police on a high-speed chase during rush hour through a busy area of town, and committed multiple major traffic infractions before ultimately running the red light at the intersection where Marianne Kotsipoulos was killed. The judge concluded the evidence was sufficient to prove a third prong theory of malice and therefore upheld the second degree murder conviction.

Following his conviction of second degree murder in 2014, Antwoin Moore moved to reduce the second degree murder verdict to a lesser offense, citing that the Commonwealth failed to prove the third prong of malice.

At the time of the incident, detectives of the Brockton Police Department were conducting a narcotics investigation, when they noticed a Chevrolet Trailblazer fail to stop at a marked stop sign. The detectives activated their blue lights, and the driver of the Trailblazer later identified as Antwoin Moore, fled the area; officers noting that the car was swerving in and out of lanes at a high rate of speed. The chase ultimately led to a major car accident at a Brockton intersection, where Marianne Kotsipoulos was killed as a result.

Judge Lawrence Moniz has found Michelle Carter Guilty of Involuntary Manslaughter after bench trial in Taunton Juvenile Court. Judge Moniz held that Ms. Carter’s actions and failure to act caused the death of Conrad Roy III.

Judge Moniz’s decision seemed to hinge on the text Carter had sent to her friend Sam Boardman which stated “Sam, Conrad’s death is my fault like honestly I could have stopped him I was on the phone with him and he got out of the [truck] because it was working and he got scared and I f—— told him to get back in Sam because I knew he would do it all over again the next day and I couldnt have him live the way he was living anymore I couldnt do it I wouldnt let him,”.

The Judge held that Carter’s statements, urging Mr. Roy to get back into his car, were wanton and reckless and that these statements created a situation where there was a high degree of likelihood that Mr. Roy would suffer death or serious injury. Judge Moniz further stated that when Carter told Mr. Roy to get back into the car she created a dangerous, likely deadly situation, and by creating the deadly situation, Carter had a duty to alleviate that danger. By failing to tell Roy to get out of the car or call for help she caused Mr. Roy’s death. The Judge cited Mr. Roy’s prior suicide attempt, where he had reached out to a friend who counseled him not to go through with it and contrasted that with Carter’s actions telling him to get back in the car.

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