Discovery Violations in the Breathalyzer Litigation:

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

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 10-16-2017 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

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.

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.

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