Court orders over 27,000 notices to be sent to drunk driving defendants

I-Team

CHICOPEE, Mass. (WWLP)–A Massachusetts court has ordered that defendants in drunk driving convictions be notified that they can return to court and request that their conviction be overturned in the appropriate circumstances.

Twenty-seven thousand notices will be sent to individuals across the state who were prosecuted with a breath test result. In January 2019, after learning of the intentional misconduct of the Office of Alcohol Testing (OAT), the Court held that a class of breath test results should have been presumptively excluded from evidence.

Springfield Attorney Joseph Bernard made the announcement on Tuesday. Bernard has been challenging the reliability of breathalyzers for several years. He told 22News, “The integrity of the criminal justice system really needs to be remedied, and in this particular case we are showing here that the system does work, and providing people with a remedy to get their life back.”

This issue goes back to early 2015 when several District Attorney’s suspended the use of breath tests as evidence.  The state had detected a number of tests were flawed.  The state eventually blamed officers saying they didn’t calibrate the machine correctly.  Attorney Bernard told the 22News I-Team in 2016 that the company that makes the breathalyzers hadn’t proved their accuracy.

In February 2017 a judge ruled that the breathalyzer machine police in Massachusetts were using produced unreliable results. At that time, Boston District Court Judge Robert Brennan decided that any breath test results from any Dräger 9510 machine from June of 2012 to September 14, 2014 are scientifically unreliable.

The cases that will be exempted from Tuesday’s ruling include alleging motor vehicle homicide by
operation under the influence of liquor, operating under the influence causing serious bodily injury, and operating under the influence of liquor as a 5th or greater offense.

Below is the news release from Attorney Bernard:

On February 1, 2021, the Court ordered 27,000 notices to be sent to citizens across the state
who were prosecuted with a breath test result. In January 2019, after learning of the intentional
misconduct of the Office of Alcohol Testing, the Court held that a class of breath test results
should have been presumptively excluded from evidence. Similar to the Dookhan and Farak
scandals, the Office of Alcohol Testing’s (OAT) malfeasance impacting breath test results spans
over eight years, dating back to 2011 through April of 2019. Citizens with breath test convictions
from this class are now being notified that they can come back into court and request that their
conviction overturned in the appropriate circumstances.

“This is a huge development for many people who are impacted by a breath test conviction,”
stated the lead defense counsel for the consolidated class of defendants, Attorney Joseph
Bernard. “Many people’s lives were turned upside down, their licenses lost, and their
employment was impacted. Furthermore, many citizens’ sentences were inappropriately
amplified because of a possible illegal prior conviction involving breath test result. Now these
individuals finally have an opportunity to go back into court and vacate the conviction.”

Defendants who were prosecuted with a class of breath test results will be receiving notice that
they may be entitled to vacate their conviction for OUI. After multiple hearings were conducted
in the statewide litigation challenging breath test results, Commonwealth v. Ananias, the Court
ordered that breath test results that were obtained from a breathalyzer that was calibrated
between June of 2011 through April 17, 2019 should have been presumptively excluded from
evidence.

The Court had initially excluded a smaller class of breath test results because the results were
not “the product of scientifically reliable methodology.” However, after an extensive investigation
by the Executive Office of Public Safety and Security (EOPSS) revealed that OAT intentionally
withheld court-ordered exculpatory evidence, the Court imposed sanctions against the
Commonwealth. As part of its sanctions, the Court expanded the class to include breath test
results that were obtained from a breathalyzer that was calibrated through April 17, 2019.

Lead defense counsel, Attorney Joseph Bernard, and late expert Thomas Workman initially
discovered OAT’s intentional misconduct. Attorney Bernard stated, “OAT’s omission to turn over
432 failed calibrations created statewide distrust to all breath test results. OAT had 432
documents demonstrating that the breath testing device failed to properly calibrate 432 times and OAT intentionally withheld this information.” The Court held that “the negative impact of
EOPSS’s findings regarding OAT’s approach to exculpatory information on public trust and
confidence in the fairness of the system and the integrity of the process cannot be overstated.”

The Court ordered OAT to comply with multiple orders, including an order that the
Commonwealth show that OAT had applied for accreditation and demonstrate that it was
substantially likely to succeed in obtaining such accreditation. OAT was the only branch of the
state forensic laboratory that was not accredited at that time. OAT finally obtained accreditation
in 2019.

In light of the serious nature of OAT’s misconduct, every District Attorney’s Office across the
Commonwealth has agreed not attempt to admit these breath test results as evidence to
prosecute OUI defendants, with the exception of cases alleging motor vehicle homicide by
operation under the influence of liquor, operating under the influence causing serious bodily
injury, and operating under the influence of liquor as a 5th or greater offense.

The lead prosecutors and Attorney Bernard have been working to provide notice to the
defendants affected by the Court’s order and the agreement of the District Attorney’s Offices.
“Over 27,000 notices are being sent out. The dysfunction and inappropriate activities by the
Office of Alcohol Testing has had an enormous impact on the entire criminal justice system,”
stated Bernard. “After the malfeasance was discovered, every District Attorney’s Office in the
entire state stood tall and agreed to send these notices out to over 27,000 citizens.”

The notice is intended to provide these defendants with information to determine whether their
plea may be vacated or whether they are entitled to a new trial. The removal of an OUI
conviction could have significant impacts in a defendant’s life related to a criminal record, a
driver’s license, employment opportunities, housing eligibility, immigration consequences, and
more.

Attorney Bernard feels strongly that “any citizen who had their lives impacted by a negative
result with the 9510 breath testing device from 2011 through April 17, 2019 should examine the
situation and contact a lawyer.” “Hopefully this corrective action will begin to remedy the distrust
that has developed. One of the goals of the agreement was to rebuild confidence in the criminal
justice system.”

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