Recent Court Order Tosses Thousands Of Breath Test Results

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Since January 2017, the Massachusetts Superior Court has been litigating the issue of the reliability and admissibility of the widely-used breath test machine, the Drager 9510. The case, captioned Commonwealth v. Ananias, et al., represents a consolidation of defendants challenging the scientific reliability of the breath test machine results. The central challenge was that the breath test machines were not properly calibrated and were therefore unreliable and should therefore be excluded as evidence against individuals charged with operating under the influence of liquor (also referred to as OUI/DUI/DWI) 

Most recently, as a result of a series of Court decisions and a Joint Stipulation in the case, all breath test results produced by a device calibrated and certified between June of 2011 and April 17, 2018 are deemed presumptively excluded – meaning it is presumed they will not come in as evidence at trial (unless the government can establish the reliability of the breath test result). In addition, the District Attorneys of all counties in Massachusetts have agreed that they will not attempt to use any tests within the presumptively unreliable time period, unless the defendant is/was charged with any of the following aggravated offenses:

  1. Motor Vehicle Homicide by Operation Under the Influence, in violation of G.L. c. 90 § 24G;
  2. Operating Under the Influence causing serious bodily injury, in violation of G.L. c. 90, § 24L; and 
  3. Operating Under the Influence of Liquor as a 5th or greater offense, in violation of G.L. c. 90, § 24(1)(a)(1).

The Trial Court will send out notices to all defendants who may be affected by this ruling. 

What To Do If You Believe This Order May Affect Your Case 

If you have been convicted of OUI where the government admitted the results of your breath test, or if you have plead to an OUI offense because of a breath test result above the legal limit, you may be eligible to vacate your plea or conviction and obtain a new trial, where the breath test result will be excluded. This will require a review of the police report and breath test documents involved in your case. 

Call or email McCormack Law, P.C. today to determine whether you have grounds to file such a motion and begin preparing your defense. 

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