1. Discovery Violations in the Breathalyzer Litigation:
Will There Be Sanctions?
MACDL Post-Conviction Seminar 2018
Attorney Joseph D. Bernard

2. Decision in Comm. v. Ananias
Breath tests calibrated between June 2011 & September 14, 2014 are presumptively unreliable
Scientific community requires written protocols in order to accept the presumptive reliability of results
Comm. failed to show OAT had scientifically reliable method for calibrating Alcotest 9510 prior to promulgation of Certificate of Calibration Procedures for Alcotest 9510 on September 14, 2014
BUT prosecution has right to hearing to specifically show defendant’s breath test was properly calibrated
Please note that Judge Brennan made a docket entry in Ananias on May 1, 2017 amending his findings of fact, stating “Correction as to the factual findings of the Memorandum of Decision issued by Brennan, J. specifically correcting the date of deployment of the Alcotest 9510 breathalyzer to MA law enforcement agencies beginning June, 2011 (and NOT June, 2012).”

3. Discovery Violations
Through FOIA request after Brennan’s decision, defense learned critical information had been withheld
Info included worksheets showing OAT had problems calibrating breathalyzers
Sec. Bennett directed EOPSS legal staff to conduct investigation into failure to provide certain documents maintained by OAT to defense counsel in Comm. v Ananias

4. EOPSS Investigation
Report of found OAT made “serious errors of judgment in its responses to court-ordered discovery”
OAT failed to provide prosecutors with:
100’s of "incomplete" certification worksheets (evidence that BT instruments failed to properly calibrate during OAT's certification process);
OAT generated records reflecting when BT instruments were sent to manufacturer for repair;
internal testing records
Institutional culture was reflexively guarded, failed to seek out available legal resources, and inattentive to legal obligations

5. EOPSS Investigation Conclusion:
Reason certain documents weren’t turned over in Ananias is OAT had long-standing but unwritten policy not to turn them over to any requestor
Policy has no legal authority to override a court order or requirement that OAT provide exculpatory evidence to prosecutors
For many years prior, OAT operated in its own silo … and, for most of its existence, physically separated from the rest of the Crime Lab

6. Pending Litigation in Ananias
Defense has filed a Motion for Sanctions
DA’s Offices across state have put a temporary moratorium on the use of breath tests
Discovery has been re-opened in Ananias
Defense counsel and experts are still analyzing the discovery
No resolution yet – follow the litigation if you have pending cases.
Anticipated hearing date around August 1. Comm. has suggested there may be joint recommendations to the court re possible resolution.

7. Motions for New Trial
Recent litigation in Ananias brought new evidence to light that may cast real doubt on justice of an OUI conviction
Expert analysis and testimony were required to demonstrate that OAT’s “worksheets” were not a protocol by scientific standards
Category of breath tests deemed presumptively unreliable only recently came to light, and would not have been discoverable through “reasonable pretrial diligence”

8. Motions for New Trial
Need to show there was “substantial risk that the jury would have reached a different conclusion.” Grace, 397 Mass. at 306
Analyze facts of case to determine whether there were other strong indicators of impairment
Even with some indicators of impairment, a breath test is a very strong piece of evidence that may have erased any doubt from jury’s mind

9. Motions for New Trial
Also important to analyze whether there is reasonable probability client would not have pleaded guilty had s/he known of this newly discovered evidence. See Commonwealth v. Scott, 467 Mass. 336, 361 (2014).
Reasonable probability test is analyzed based on the totality of the circumstances.

10. Motions for New Trial Court looks to the following factors:
whether evidence of the government misconduct could have detracted from the factual basis used to support the guilty plea
whether the evidence could have been used to impeach a witness whose credibility may have been outcome-determinative,
whether the evidence was cumulative of other evidence already in the defendant’s possession,
whether the evidence would have influenced counsel’s recommendation as to whether to accept a particular plea offer, and
whether the value of the evidence was outweighed by the benefits of entering into the plea agreement.
These factors are examined on a case by case basis, and the Court is to look to the “full context” of the defendant’s decision to enter into a plea Id. at 356-

11. Motions for New Trial
Possible challenge to older cases where a breath test obtained from an older BT device
OAT did not implement ANY formal written protocols to annually calibrate breath test devices until September 14, 2014
Bases: testimony in Ananias of Melissa O’Meara, former technical leader of OAT, & information from subsequent FOIA request

12. Motions for New Trial
May be too early to file a MNT based on use of breath tests after the presumptively unreliable period (September 14, 2014)
We expect that there will be viable motions for new trials based on these discovery violations and EOPSS’ investigation
OAT has “longstanding and insular culture” of failing to meet the scientific and legal standards of a lab that produces reliable BT results and a clear history of misconduct.

13. MACDL Post-Conviction Seminar 2018 Attorney Joseph D. Bernard
Thank you!
MACDL Post-Conviction Seminar 2018
Attorney Joseph D. Bernard