Massachusetts defense attorneys and prosecutors have reached a tentative agreement, pending approval and modification by the court, regarding sanctions imposed against the government for refusing to disclose court-ordered evidence during state-wide litigation challenging the reliability of the Dräger 9510 breath test machines. Under a previous court order, breath tests results were presumptively excluded from evidence at trial if the machine had last been calibrated between June 1, 2011 and September 14, 2014.
As a result of government misconduct, however, where staff at the Office of Alcohol Testing that oversees certification and maintenance of the machines had intentionally withheld certain court-ordered documents, the exclusion of results will be expanded to at least August 31, 2017.Plus, DAs have agreed not to challenge the exclusion except in cases of OUI causing death or serious bodily injury and fifth or higher offenses.
The defense bar, however, wants the period of excluded results to continue until the OAT is accredited by American National Standards Institute – American Society for Quality (ANSI-ASQ). OAT is the only Massachusetts state crime lab not accredited.
The current agreement calls into question approximately 36,500 breath test results. If the court agrees with defense counsel that results should not be considered until the state lab is accredited, the number of excluded results would certainly increase but that would provide strong incentive for the state lab to achieve accreditation. The leaders of the defense bar were Joseph Bernard and Thomas Workman who were named Lawyers of the Year by the Massachusetts Bar Association.
