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.

To learn more about breath testing litigation in Massachusetts, contact Attorney DelSignore at 781-686-5924