In a pivotal decision issued on Thursday, February 16, 2017, the Honorable Robert A. Brennan declared that from June 2012 until September 14, 2014, the Massachusetts Office of Alcohol Testing (“OAT”) did not have a “scientifically reliable methodology for calibrating the Alcotest 9510”. Judge Brennan found that by failing to maintain written protocols “for accepting the presumptive reliability of calibration laboratories,” OAT fell short of the standard required by the scientific community at the time. As a result, any breath test result from a Draeger Alcotest 9510 calibrated and last certified by OAT prior to September 14, 2014 is excluded from evidence unless the Commonwealth can demonstrate to the trial judge, on a case-by-case basis, that the particular breath test result was the product of a properly calibrated machine. This means that the District Attorneys Offices will likely have to present the testimony of calibrating scientists from OAT before a judge can allow the admission of a breath test result from this time period. Given that the breath test machines are required to be certified by OAT only on an annual basis, Judge Brennan’s decision could impact breath tests that were administered as late as September 13, 2015.
If you pled to a charge of OUI between 2012 and September 13, 2015, and your decision was based upon the result of a breath test, you may be eligible to have your case re-opened and have the breath test result excluded. This would afford you the opportunity to challenge the remainder of the case by taking it to trial. READ THE FULL JUDGEMENT HERE: Draeger Memorandum of Decision
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