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Defense bar sees lot to like in proposed breath-test deal

Judge given options to extend exclusion window

By: Pat Murphy August 16, 2018

Defense attorneys like their chances of keeping breath-test results out of most drunken-driving cases for the foreseeable future under the terms of a proposed agreement to resolve discovery sanctions in a statewide challenge to the reliability of the Draeger Alcotest 9510 device.

The state’s district attorneys and defense counsel jointly filed the agreement Aug. 14 in Concord District Court in Commonwealth v. Ananias.

The proposal features more robust discovery provisions for the disclosure of exculpatory evidence regarding the Office of Alcohol Testing’s servicing and calibration of the 400 Alcotest 9510 devices used by law enforcement in Massachusetts.

Moreover, the parties jointly call for an extension of the period for which the breath tests shall be deemed “presumptively” excluded from use by the commonwealth in most drunken-driving cases.

The attorneys for the consolidated Ananias defendants are Springfield’s Joseph D. Bernard and Thomas E. Workman of Taunton.

Lowell OUI and criminal defense attorney Gregory D. Oberhauser praised Bernard and Workman for “getting the football across the goal line” in Ananias.

“The commonwealth had to wake up and see what was going on,” Oberhauser said of the proposed agreement.Derege Demissie, president of the Massachusetts Association of Criminal Defense Lawyers, likewise commended the Ananias defense team for negotiating such a favorable agreement.

However, Demissie added that the problems at OAT are reminiscent of the systemic misconduct exposed in the Annie Dookhan and Sonja Farak crime lab scandals. For that reason, Demissie said, a global remedy ordered by the Supreme Judicial Court ultimately may be the best solution.

“When you have 20,000 or 30,000 convictions obtained with tainted or unreliable evidence, trying to provide a remedy on a case-by-case basis is not going to work,” Demissie said. “The Supreme Judicial Court recognized [in previous crime lab scandals] that the only way you can do it fairly and equitably is to acknowledge those convictions should be thrown out as a whole.”

Suffolk County Assistant DA Vincent J. DeMore is the lead negotiator for the DAs in the case. DeMore said the agreement before the court goes a long way in addressing a variety of concerns raised in the case.

“The agreement does two things,” he said. “One, it established [reforms] the Office of Alcohol Testing was already heading in the direction of. It will help restore confidence in the reliability of the [breath-test] instrument from the public’s perspective. The second thing it does is provide some remedial measures to the defendants who may or may not have been aggrieved by the discovery violation that was revealed in August of last year.”

Getting the word out

Bernard said a key provision in the proposed settlement is the commonwealth’s commitment to provide written notice of the agreement’s terms to defendants who were charged with OUI, submitted to a breath test administered on a 

Draeger 9510 device, and received an adverse disposition between June 1, 2011, and Aug. 31, 2017.

OUI attorneys need to determine whether they have any clients within the affected class who may have a basis for relief, Bernard said.

“We’re going to contact every lawyer in Massachusetts, because if you pled guilty or were found guilty, that could impact the finality of that particular plea or trial,” he said.

Workman estimated that prior to Aug. 31, 2017, there were more than 36,500 breath tests administered with the 9510 device that resulted in readings over the legal limit. Given that the Dookhan drug lab scandal affected 34,000 defendants, Workman thinks OAT’s problems ensuring the accuracy of the Alcotest breath-test device would make it the largest crime-lab scandal in state history.

“If the judge sets the exclusion date after Aug. 31, 2017, then there will be even more citizens impacted,” he added.

“They need to get all their ducks in a row before we let this black box go out and destroy people’s lives.”— Gregory D. Oberhauser, Lowell

“They need to get all their ducks in a row before we let this black box go out and destroy people’s lives.” — Gregory D. Oberhauser, Lowell

Keep it moving

With the settlement in Ananias pending, Oberhauser said his advice for defense counsel is to get as many of their clients’ cases to trial as possible. With breath tests currently not being introduced by prosecutors, he said he has won 52 of 57 trials since October, most involving clients with test results over .08.

The proposed agreement filed in Concord District Court addresses the issue of discovery sanctions in Ananias for OAT’s failure to produce documents indicating calibration problems with the 400 Draeger breath-test devices used by police in the state.

In Ananias, 535 OUI defendants from across the state raised challenges to the reliability of the Alcotest 9510. The cases were consolidated for a Daubert hearing before Judge Brennan. In February 2017, Brennan found that the methodology used for annually certifying Alcotest 9510 devices by OAT from June 2012 to Sept. 14, 2014, did not produce “scientifically reliable” blood alcohol-content results.

Accordingly, the judge granted defense motions to exclude BAC results yielded by devices calibrated and certified by OAT during that period, subject to the state having the opportunity to demonstrate on a “case-by-case” basis the reliability of the office’s calibration of a particular device.

In August 2017, defense attorneys filed a motion for discovery sanctions, alleging OAT had withheld hundreds of records indicating the lack of reliability of the breath-test device. Concerned with mounting evidence of problems at OAT, DAs statewide responded by suspending the use of breath-test results in drunken-driving cases.

📷 “When you have 20,000 or 30,000 convictions obtained with tainted or unreliable evidence, trying to provide a remedy on a case-by-case basis is not going to work.”— Derege Demissie, president of MACDL

“When you have 20,000 or 30,000 convictions obtained with tainted or unreliable evidence, trying to provide a remedy on a case-by-case basis is not going to work.” — Derege Demissie, president of MACDL

Bone of contention

The agreement reached by the parties awaits the approval of Judge Brennan, who also will have to decide the cutoff date for the exclusion period. The state wants the end date to be Aug. 31, 2017, the date it contends it belatedly complied with its discovery obligations in Ananias.

Bernard and Workman, meanwhile, argue that the exclusion period should extend until OAT is accredited as a crime lab by the American National Standards Institute – American Society for Quality.

“Our litigation shows that the Office of Alcohol Testing needs to be accredited by a third party before they produce reliable [breath-test] results,” Bernard said.

In October 2017, investigators from the Executive Office of Public Safety issued a 126-page report that concluded that OAT routinely failed to provide information that could be helpful to defense attorneys. As a result of the investigation, OAT’s technical leader, Melissa O’Meara, was fired and reforms were implemented.

Under the proposal, the state has agreed that OAT will apply for accreditation no later than Aug. 1, 2019.

“The fact that they’re waiting a year before they apply says they’ve got a year’s worth of work before they get their [act] together,” Workman said. “Given that they know they’re not ready, why should we believe that they’re doing an adequate job today?

”According to Bernard, despite the shakeup in management, OAT is still “years away” from being accredited.“We still don’t believe that the Office of Alcohol Testing is in a state where they can [ensure that the Alcotest devices] produce reliable results,” Bernard said.Oberhauser said it only makes sense to tie the exclusion cutoff date to OAT accreditation.

“They need to get all their ducks in a row before we let this black box go out and destroy people’s lives,” he said.

The defendants in Ananias have requested a hearing on the exclusion cutoff date, Bernard said, seeking the opportunity to present evidence to Brennan on the current status of OAT. The evidence would support the defendants’ contention that the selection of a cutoff date should be based on the agency showing that its operations are worthy of accreditation, he said.

“We’re going to leave it to Judge Brennan to see if he agrees with us,” Bernard added.

In the proposal filed with the court, the parties agreed to be bound by the judge’s decision on the issue. In addition, the commonwealth agreed that, for the duration of any exclusion period decided by the judge, prosecutors would not to seek to establish the reliability of OAT’s calibration and certification on a case-by-case basis in any offense alleging a violation of G.L.c. 90 or 90B, with the exception of those cases involving death or serious injury.

Enhanced discovery

According to Workman, one of the more important provisions of the proposed agreement deals with affording defense counsel reasonable discovery of evidence relating to the servicing and calibration of the Alcotest devices. The agreement notes that OAT designed, developed and expanded an eDiscovery portal after the onset of the Ananias litigation.

The portal provides equal access to all users to materials such as device certification and calibration records, instrument repair records, certificates of analysis for ethanol solutions, and certificates of analysis for dry-gas standards. Under the settlement agreement, the commonwealth further agreed to produce raw data concerning various types of instrument tests in response to specific discovery requests.

Workman said that defense attorneys need to take full advantage of the enhanced discovery.

“We can no longer assume that everything we get from the labs is correct,” he said. “Attorneys have to be willing to dive down deep into the mechanics of how the breath-test machines work, how the regulations work, and what kind of problems there could be so that they can adequately represent their clients.

”There are still certain shortcomings to the eDiscovery portal, Workman said. For example, he explained that while the portal allows attorneys to locate a particular test in a particular case by specifying the serial number for the machine and case number, other searches fail to pick up the results of so-called proficiency tests that officers perform on themselves to check that a particular device is working properly.

“If the machine is giving the wrong result, then aren’t we entitled as counsel to know about that?” Workman asked. “With the portal, they don’t show you the proficiency tests at all.

”But ADA DeMore pointed out that OAT is slated to roll out a “2.0” version of its discovery portal next month, ensuring equal access to documents by both prosecutors and defense counsel. He said the new portal should address many of the defense bar’s concerns.


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