35k OUI convictions may be appealed
Note: updated at 2 p.m. Wednesday to include statement from Mass. EOPSS
SPRINGFIELD -- Breathalyzer results could be tossed out as evidence in thousands of drunken driving prosecutions as part of an agreement between all of the state's district attorneys and the defense lawyers in a long-running case challenging the reliability of the testing devices.
Each of the state's 11 district attorneys have agreed not to use breath test results in drunken driving prosecutions for arrests before Aug. 31, 2017. The only exceptions are cases involving death or serious injury, or anyone facing charges for a fifth offense or higher.
The move is part of an agreement between the DAs and lawyers Thomas Workman of Taunton and Joseph Bernard of Springfield, who are challenging the validity of breath tests as evidence in drunken driving cases.
The new agreement expands that window for excluding breath test results by nearly another three years. It was submitted to the judge in the case, Concord District Court Justice Robert Brennan, on Tuesday, and he must still decide to accept it.
Brennan ruled Feb. 17, 2017 that while the Draeger 9510 machines are reliable, the state's protocols for calibrating them were careless. He ruled test results from within that window could still be used, but only on a case-by-case basis when prosecutors could demonstrate the tests were done on a certified machine that had been properly calibrated.
The agreement results from a controversy that arose last year when it was determined the state Office of Alcohol Testing, the agency within the State Crime Lab that oversees breath testing technology, failed to submit to the court some 400 documents detailing problems with calibration of the devices. The head of the lab at that time has since been fired.
"We learned the state withheld evidence," Workman said. "That's a very bad thing to do in court."
Workman said the 2017 order covered 19,000 cases. The DAs agreeing to expand the exclusion window by nearly three years means the number of affected cases will increase to around 36,000.
And if the judge agrees to the defense attorneys' request to extend the window further, the number of cases could expand to well over 40,000, Workman said.
Through the end of 2017, the number of drunken driving cases involving a breath test totaled more than 39,000.
"To correct the deficiencies that exist, the (Office of Alcohol Testing) must become accredited," Bernard said.
The agreement calls for the office to apply for accreditation by next August.
Brennan has yet to make a decision on the matter, and a hearing is scheduled next week.
The breath test controversy comes on the heels of scandals in the state crime lab involving chemists Anne Dookhan and Sonja Farak, who in unrelated cases were found to have tainted or tampered with thousands of drug samples at their respective labs. Their conduct resulted the dismissal of nearly 29,000 drug cases.
Excluding breath test results does not mean the state has to dismiss the charges in related drunken driving cases. Prosecutors can still introduce other evidence such as results of a failed field sobriety test, or the officer's observations that a driver had trouble standing, had glassy eyes or smelled of alcohol.
Bernard said problems with the testing and with the crime lab are unacceptable.
"Our justice system and public deserve more," he said, adding that defendants in drunken driving cases can go to jail, lose their jobs and lose their right to drive.
"The Office of Alcohol Testing is directly responsible for insuring that breath tests provide accurate and precise results," he said. "To be trusted by the public, the evidence used in the justice system has to be correct. If not, then the trial is not fair."
Workman said that until the office is accredited, questions will hang over all breath test results introduced at trial. Until the problems arose, any test showing a blood-alcohol reading of .08 percent -- the legal definition of intoxication in Massachusetts -- was a legal slam dunk for prosecutors.
"The public and juries wants to believe the machines," he said. "But what do you do when the machine is wrong or has not been calibrated correctly?"
The Massachusetts Executive Office of Public Safety and Security on Wednesday issued a statement on the matter. It also sent a letter to each district attorney.
"The integrity and accuracy of breath test instruments in use across the Commonwealth at this time has never been determined to be an issue in this case and we stand behind these instruments' ability to accurately determine the breath alcohol level of drivers charged with operating under the influence, " it said.
"The Office of Alcohol Testing has been working diligently to improve transparency by increasing the availability and accuracy of documents and data in its possession."
Law Enforcement continues to use the breath tests in cases of suspected drunken driving, and the Office of Alcohol Testing continues to certify them. "We maintain full confidence in the integrity and scientific reliability of these instruments as well as the Office of Alcohol Testing's ability to certify them," the statement read.
Update on the Office of Alcohol Testing uploaded by Patrick Johnson on Scribd
A statement by Berkshire District Attorney Paul Caccaviello said prosecutors have agreed to allow the court to determine the period of time in which "breath test results are not automatically admissible" in OUI prosecutions.
"This is a mutual effort to resolve the litigation that has delayed the criminal trials of numerous OUI defendants throughout the commonwealth," he said.
Hampden District Attorney Anthony Gulluni could not be reached for comment.
Northwestern District Attorney David Sullivan declined comment. His office referred questions to the Suffolk District Attorney's Office, which is more involved in the case.
Suffolk County Assistant District Attorney Vincent DeMore told WBUR in Boston on Tuesday that the proposed agreement requires the Office of Alcohol Testing to become accredited and should resolve concerns about the accuracy of testing equipment.
"I think far from it being a situation that should shake the confidence of the public, it should be an area where we should have greater confidence in the reliability of the instrument," he said.
posted by Jim Pillsbury @ 8:34 PM
14 Comments
14 Comments:
First this is shameful and we should all be up in arms about this. I would like to see numbers on how many people charged with a felony in MA in the last 6 years have never even had to go to trial because of mistakes in our processes? Do you know how to get those numbers?
First the drug lab scandal, then the Senate President scandal, then the State Police overtime scandal, now this issue with the machines used to test for alcohol impairment when driving. Not familiar with the Med Examiner issue, but sounds like another state government office that is corrupt or at least incompetent. Pretty long list of failures of our government here in MA. What do we do about it?
It would take days, maybe months of asking through a FIOA to find out how many not been prosecuted due to mistakes. I can only trust papers like to Globe will take the question on and provide the results to the readers.
Most people are not aware of these issue's and if they are, they keep their heads in the sand. Now that it's election time, our only recourse is to make the candidates answer questions about what they would do to fix the problems. But as we know from history, Beacon Hill does it's best to side step any issue that makes them look incompetent.
This is appalling. Hope that in debates for the Governor this track record of serious mistakes comes up in questions. He may have inherited a lot of these problems, but Baker apparently has not done a very good job at fixing them.
Shameful that more people don't know about this. How do we change that?
Thanks for the work you do to stay on top of things like this.
whats the deal with the medical examiners office
Curious Jim. How many of these cases that may get thrown out are for OUI arrests made here in Framingham? Do you know that figure?
The Medical Examiners office is a long story... but in a short version, the ME's office has not been accredited for over 5 years. Under staffing is the major reason along with the wrong people in charge. In this years budget, DeLeo and company only appropriated 134,000 in new funding. They are now in a provisional accreditation mode. The end result is that dozens if not hundreds of families don't know why their loved ones had died and the cause. My partner's (Steph Deeley) sister died in the hands of her abuser and the ME's office still can't tell us what she died of. She was 45.
It would take me months to find out how many OUI's are under appeal here in Framingham but It's my guess, just casually looking at the police blotter over the years, that there could be hundreds out of the thousands that have been prosecuted already. And the worse part of this is that nobody seems to gives a dam about it at any level of government, including those who are running for office now. All they have done is given the Alcohol Testing agency till August of next year to get accredited. I'm trying to find out who does that accreditation.
The question of why no one knows anything about this comes up a lot and I have no viable answer. I will say that the media is partly to blame, especially the broadcast media. They will, many times run stories or investigative reporting at the 11 PM news cycle when most people have already gone to bed. If it were not for The Globe, Mas Live and a few other outlets, I myself would never know. But given what is happening with the State Cops, shinning a light on the OUI debacle is a lower priority.
I forgot to write this as well. The price tag for just the OUI fallout may be in the millions of dollars, in terms of police, prosecutor and court time. Not to mention the fact that many who failed the breathalyzer test are now going to get off on appeal and who knows what carnage may result on our highways and roads.
I would think the police department could easily tell you how many pending OIU cases they have, and of those, how many of the accused were given breathalyzer tests. Shouldn't that information be something the keep track of?
Are you serious about the MEs office? five years with no accredidation? Do you think your sister-in-law was killed by her husband?
I could file a FIOA with FPD... I'll give it a whirl... but they may refer me to the DA's office.
We do think she was killed by her husband... and as of now, a new lead is being investigated, five years later after I and the family demanded the Police and DA look into a certain aspect of the cause of death. The other issue is mis-conduct by a Police Department and the DA's office. It such a huge multi layered problem. But we will not give me.
Is it the Middlesex DA? Would be interested to hear more if it is since she has a challenger this year
It's all of the DA's as far as I know.
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