Tens of thousands of Massachusetts residents convicted of driving under the influence will get a second chance following a ruling from the state’s highest court citing “egregious government misconduct” and poorly calibrated breathalyzer equipment.
The roughly 27,000 defendants who pleaded guilty or were convicted in operating under the influence cases that included breath test results from the Alcotest 9510 device from June 1, 2011, through April 18, 2019, “are entitled to a conclusive presumption of egregious government misconduct,” Justice Frank M. Gaziano wrote in the Supreme Judicial Court opinion in Commonwealth v. Hallinan issued Wednesday.
The history behind this ruling can be traced at least as far back as 2015, with consolidated litigation challenging the reliability of breath test machines.
That litigation led to an investigation by the state Executive Office of Public Safety and Security, which released a report in October 2017 that found the state Office of Alcohol Testing had failed to turn over 400 documents to defense attorneys showing tests in which the breathalyzer machine employed by the OAT, the Draeger Alcotest 9510, had failed to properly calibrate.
The office’s director at the time of the misconduct, Melissa O’Meara, was fired and district attorneys across the state stopped using the Alcotest results in their prosecution.
Wednesday’s SJC ruling was well received by defense attorneys, with the Committee for Public Counsel Services calling it “a victory for the thousands of people who have been living with tainted convictions and for those who believe the government should be accountable for its actions.”
“Once again, the Supreme Judicial Court has been forced to tackle a scandal raising serious doubts about the reliability of forensic evidence and the government’s failure to disclose invaluable, exculpatory evidence to defendants,” CPCS Chief Counsel Anthony Benedetti wrote in a statement.
Those convicted in cases involving the test can file to withdraw guilty pleas and motion for new trials in which the old breathalyzer results are barred from use.
And the opinion looks forward, as any pending or future prosecutions cannot use test results from that period.
“Where a defendant successfully moves for a new trial due to OAT’s misconduct, and thereafter is convicted, so long as the defendant’s original sentence was legal, the new sentence will be capped at no more than the original sentence,” the ruling states.
The Massachusetts State Police issued a statement saying that it is “reviewing today’s decision and its impact.”
The OAT “in recent years has implemented significant operational improvements to ensure that breathalyzer certification, case management, discovery processes and employee training are in accordance with all applicable laws and established forensic best practices,” MSP spokesman Dave Procopio wrote in the statement. “It is important to note that the OAT operating procedures described in today’s decision predate those numerous and substantial reforms.”
Springfield-based OUI defense attorney Joseph Bernard, who was lead counsel in the litigation that began in 2015 and served as co-lead counsel in the Hallinan case, said in a statement, “Thousands of people have been negatively impacted by the scientific unreliability of the Office of Alcohol Testing’s breath test machines, and now the Supreme Judicial Court has confirmed the misjustice.”
