Articles Posted in Breathalyzer Testing

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.

The Massachusetts Supreme Judicial Court ruled today that police officer do not have to advise a defendant of their right to a lawyer prior to deciding whether to take a breath test. The decision came in the case of Commonwealth v. Neary-French decided today.

Defense lawyers argued that with the amendment to Melanie’s Law in 2003 creating the per se violation for a breath test over .08 that this created a critical stage in the prosecution entitling a defendant to a lawyer.

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

Up to 1000 DUI cases in Philadelphia may be impacted by a faulty breath test machine that was not properly calibrated.  What happened in Philadelphia is that an expired solution was used to calibrate the breath test machine.  This error was discovered by a DUI Lawyer likely in preparing one of his cases in order to attempt to have the results excluded at trial.  Gray Hall wrote an article for ABC6 in Philadelphia discussing the problems with the machine and notes that the police department were quick to say that the machine was working properly and that is was human error.

In Massachusetts, we are in the process of our own litigation over the accuracy of the breath test machine. Over 700 cases have been stayed awaiting the resolution of the litigation in the Concord District Court which concerns the following issues:

  1. Is the Computer Program, known as the source code, scientifically reliable?

The U.S. Supreme Court ruled on Thursday that states cannot make it a crime for a drunken driving suspect to refuse to take a blood test but can criminalize the refusal to take breath tests to determine alcohol levels.  The ruling will affect laws in 11 states.  The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests.  The court considers breath tests less intrusive than blood tests, hence no need for a warrant.  The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution’s ban on unreasonable searches and seizures.  Other states that have criminalized a driver’s refusal to take alcohol blood or breath tests include Alaska, Florida, Indiana, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.

Implied consent laws make the assumption that by driving on a state’s roads, you are deemed to have consented to testing if you are suspected of drunk driving.  All fifty states have imposed some form of implied consent laws.  Many states have tough laws if a driver is found to be driving under the influence.  These tough laws have created a problem of their own: drivers, particularly those who have had a lot to drink or have prior drunk driving convictions, may opt to refuse the tests, because the consequences of doing so may be less severe than what they would face if convicted of drunk driving. This dilemma led the eleven states mentioned above to create statutes that make refusing alcohol testing a crime.

Alcohol testing is a physical trespass search within the meaning of the Fourth Amendment, and therefore it must fall within a Fourth Amendment exception in order to be conducted without a warrant.  The Court ruled two years ago in a case involving the search of an arrestee’s cellphone, courts should instead look at the extent to which the search intrudes on the privacy of the person who is being arrested, as well as the extent to which the search is needed to promote “legitimate governmental interests.”  The Court today held that there is no real physical intrusion from the breathalyzer test, and that keeping drunk drivers off of the street is a legitimate government interest.By contrast, the Court concluded today, blood tests do not pass constitutional muster to be conducted without a warrant.  Although they too help promote “legitimate government interests,” they are “significantly more intrusive” than breath tests: they require the technician taking the sample to pierce the driver’s skin, extracting a sample that provides law enforcement officials with more information than a breath test.

The Statewide challenge to the accuracy of the breath test machine used in Massachusetts took a positive turn for the defense with a ruling from Massachusetts Supreme Court Justice Botsford.

The Massachusetts Supreme Judicial Court ruled that defendants in a set of cases should be provided access to breathalyzer instruments and the necessary related materials to permit dynamic testing to be performed. The defendants in the cases of Commonwealth v. Figuereo and Commonwealth v. Ananias challenged the scientific reliability of the alcohol breath test results produced by a model of breathalyzer used throughout the Commonwealth, the Alcotest 9510. In both sets of cases, a Daubert-Lanigan hearing is anticipated, and this decision is an effort to define the scope of discovery relating to the defendant’s challenges to the reliability of the Alocotest’s breath test results.

The defendants have been permitted to conduct both static and dynamic testing of the Alcotest in relation to their anticipated hearings. Static testing involves analyzing the “source code” used in manufacturing the instruments and tailoring them to meet Massachusetts specifications. The “source code” of the breath test, and most computerized devices, is the code written by computer programmers when they develop the software that runs the machine. As the source code is written by programmers that created the breath test, having access to that code allows defense attorneys to have the code analyzed by a programming expert to determine whether the machine has any errors or faults.

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Neary-French v. Massachusetts last week to decide the question of whether a defendant should be advised of his or her right to counsel prior to making the decision of whether or not to submit to a breathalyzer test. The 2003 amendment to G.L.c. 90, §24 created the “.08 or greater” per se theory by which an OUI offense can be proven. Because a breathalyzer test can result in per se proof, the decision whether or not to submit to the test becomes a critical stage in conviction for an OUI. A critical stage is one in which the defendant’s rights could be sacrificed or lost. Before the 2003 amendment, the right to counsel did not attach because the Court did not consider the test a ‘critical stage’ in the criminal process and the assistance of counsel would create an undue delay in the administration of the test. There were reasonable safeguards in place to protect the defendant’s right. The 2003 amendment removed defendant’s safeguards and caused the breathalyzer to become a critical stage in the criminal process because the outcome of the test could possibly be the sole basis of a conviction.

Counsel for the defense illustrated what the process would look like if the right to counsel were afforded. When a person is pulled over for suspicion of driving under the influence, they are immediately taken into physical custody. When they get to the station, they are then booked, a process that can take up to an hour. There is ample time to allow the defendant the right to consult with their attorney before the decision to submit to a breathalyzer test. There is concern about the dissipation of alcohol while the defendant is waiting on their lawyer. However, so long as the defendant is afforded the opportunity to place a call to a lawyer shortly after they arrive at the station, there will be a reasonable window of opportunity for the lawyer to advise their client without interference in the test process.

Courts in other states have held that the right to counsel attaches to the decision to submit to a breathalyzer test, including Oregon, South Dakota, Texas, Vermont, and New York. All of these states have found that the right to counsel before a breathalyzer test is guaranteed under the Sixth and Fourteenth Amendments. It is not enough that a suspect in custody is given their Miranda rights, as Miranda only applies to testimonial evidence. The decision to submit to a breathalyzer is a critical stage in the process of conviction for an OUI and should be treated as such. The right to counsel should attach to ensure a safeguard for defendants before they make the decision that could produce direct evidence against them.

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