DA's offices to notify some OUI defendants they may be entitled to seek a new trial based on unreliable breathalyzer results
The Northwestern District Attorney’s Office will this week be mailing letters to approximately 3,100 persons who were convicted of operating under the influence (OUI) of alcohol between 2011 and 2018, notifying them that they may be entitled to seek a new trial based on unreliable breathalyzer results.
Breath test results in criminal cases between 2011 and 2018 were deemed inadmissible as the result of litigation in the Boston Municipal and District Court Departments, in which several criminal defendants challenged the reliability of the test results. After a lengthy evidentiary hearing, Judge Robert Brennan ruled in February 2017 that the breathalyzer machine in question (the Alcotest 9510) “operates in a manner that produces scientifically reliable blood alcohol content (BAC) results [and that] the source code underlying the Alcotest 9510 breathalyzer device was developed and implemented in a manner that produces scientifically reliable BAC results.”
However, Judge Brennan found that the annual calibration and certification methodology employed by the Office of Alcohol Testing between June 2011 and September 2014 was deficient, resulting in scientifically unreliable BAC results. He further ruled that breathalyzer results would not be allowed back into evidence until OAT implemented reliable methods for calibrating and certifying the machines, which happened in 2019 when OAT obtained accreditation. Breathalyzer results have been used in court ever since.
Based on the results of the breathalyzer litigation, all criminal defendants who took the breathalyzer between 2011 and 2018 and were subsequently convicted of OUI-alcohol will receive letters notifying them of their right to challenge their convictions. This includes defendants who went to trial and were found guilty; defendants who resolved their cases through guilty pleas; and defendant whose cases were “continued without a finding” and eventually dismissed after successfully completing a short period of probation. If an eligible defendant chooses to challenge their conviction, they may be entitled to a new trial, at which the Commonwealth would have to prove their guilt without relying upon the breathalyzer result.
Between 2011 and 2018, there were approximately 3,100 OUI-alcohol prosecutions in Hampshire and Franklin Counties in which defendants took the breathalyzer and were later convicted or received a continuation without a finding. Statewide, there are an estimated 27,000 persons who may be eligible to challenge their convictions and will be receiving letters in the coming weeks. Each District Attorney’s Office is responsible for mailing standard letters to all defendants convicted of OUI in their respective counties between 2011 and 2018.