24 August 2017, 5:32 PM

After our clients’ combined Motions to Suppress were allowed yesterday (See Results on Main Page):

The Worcester County District Attorney has announced today that they will no longer be introducing breath tests from the Alcotest 9510 for ANY Defendants charged with Operating Under the Influence of Alcohol (OUI) in Worcester County.

If you have been charged with OUI in Worcester County, RIGHT NOW, the breath test will not be admitted at the trial of your case.

This may change in the future.

For many Defendant’s with otherwise triable cases this may be the impetus for you to advance your case to trial more quickly to reap the benefit of this moratorium.

The basis of our motion, our work and the impetus for the above is the following:

The results from the Draeger Alcotest 9510 are scientifically unreliable pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Commonwealth v. Lanigan, 419 Mass. 15 (1994). Without an assessment of its reliability, the admission of the breath test results violates the sixth amendment, due process under art. 12 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution.

The Court in Daubert presented a four-factor test to help determine whether scientific evidence is both relevant and reliable. Those factors are: (1) whether the theory or technique has been, or can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error; and (4) whether the theory or methodology has been generally accepted within the scientific community.

In OUI cases in which a breath test was taken, the Commonwealth would introduce evidence of breath test results taken from the defendant by the Draeger Alcotest 9510. The defendants contend that the test produced evidence through a scientific process, and therefore upon this request, the Court must make a determination as to whether it is scientifically reliable.

It has long been the case that where ‘evidence produced by a scientific theory or process’ [Note 21] is at issue, the judge plays an important gatekeeper role to evaluate and decide on its reliability as a threshold matter of admissibility.

See Commonwealth v. Camblin, SJC-11774 (June 12, 2015); citing Commonwealth v. Cumin, 409 Mass. 218, 222 (1991); Lanigan, 419 Mass. at 25-26; Commonwealth v. Shanley, 455 Mass. 752, 761 (2010).

This issue was considered en masse under an Order of Special Assignment by the Chief Justice of the District Court, Paul Dawley in Commonwealth v. Evando Ananias & Others, Ayer District Court Docket No. 1248 CR 1075 by the Hon. Robert A. Brennan.

Judge Brennan concluded:

The Alcotest 9510 begins its infrared detection of alcohol when a subject blows air into a tube; the expelled breath passes through a heated cuvette into an infrared chamber, where an infrared detector examines the absorption of infrared light at 9.5 microns.

Ananias, at 7-8.

Neither the Commonwealth, the Office of Alcohol Testing (OAT) nor Draeger Safety Diagnostics Inc. has produced any calibration information confirming that the infrared detector examined the absorption of infrared light at 9.5 microns by means of light meter calibration.

As such, the Alcotest 9510 fails the first and third prongs of Daubert: (1) whether the theory or technique has been, or can be tested and (3) whether there is a known or potential rate of error.

The decision to suspend the introduction of the Alcotest 9510 is another example of the Worcester County District Attorney’s – Joe D. Early, Jr’s – commitment to justice for all citizens.