District Attorneys across Massachusetts this week have suspended the use of Breath Alcohol Testing (BAT) evidence in drunk driving or Operating Under the Influence cases at trial or in plea negotiations. This action follows recent claims by defense attorneys that, in prior litigation challenging the reliability of the Alcotest 9510 BAT machine, prosecutors withheld key evidence, specifically, hundred of records purportedly indicating that the Alcotest 9510 machine was unreliable.
The motion, filed last week by defense attorneys in the Concord District Court in Commonwealth v. Ananias, et. al., alleges that the Commonwealth withheld exculpatory material and asks the court to impose sanctions against the Commonwealth. The motion claims that the prosecutors’ failure to produce worksheets and data concerning the Alcotest 9510 were a direct violation of the court’s order and allege that the Office of Alcohol Testing “…has possession or knowledge of the withheld worksheets and the government consciously chose not to provide” them. The motion further asks the court to dismiss all of the defendant’s cases that are impacted by this misconduct.
The worksheets alleged to have been withheld involved approximately 400 “calibration” checks during various certification processes that were never reported to the court. The motion suggests that 89% of these withheld worksheets are exculpatory.
In the original challenge to the reliability of the Alcotest 9510, defense lawyers argued that BAT results produced by this machine should be excluded because the data produced was unreliable. After hearing, the judge ruled that the Alcotest 9510 is scientifically reliable and that the methodology employed by the Massachusetts Office of Alcohol Testing after September 14, 2014 “produces scientifically reliable BAC results.” The court also ruled that, from June 2012 to September 14, 2014, based on the evidence presented, the annual certification methodology employed by the OAT did not produce scientifically reliable BAC results and were presumptive excluded from use at trial (though the court permitted the Commonwealth, on a case by case basis, to rebut that presumption.
The most recent motion and claim that exculpatory evidence was withheld, could not call into question the initial ruling. Arguably, if in fact volumes of additional exculpatory data were withheld and therefore not considered by the court in reaching its opinions, that data may potentially now cause the court to reconsider its prior ruling. Potentially, approximately 58,000 OUI/DUI cases statewide maybe affected.