Commonwealth v. Evando Ananias, Christian Figueroa, and Others
MEMORANDUM OF DECISION ON CONSOLIDATED DEFENDANTS’
MOTION TO COMPEL AND IMPOSE SANCTIONS
Judge Robert Brennan, January 9, 2019
(Evidence/Breath Test Result)
The defendants’, all charged with operating under the influence of alcohol, filed a motion to exclude the breath test challenging the scientific reliability of the instrument. On February 16, 2017, after a Daubert/Lanigan hearing, Judge Brennan issued a Memorandum of Decision with the following findings:
1. The Alcotest 9510 breathalyzer device operates in a manner that produces scientifically reliable BAC results;
2. The source code underlying the Alcotest 9510 breathalyzer device was developed and implemented in a manner that produces scientifically reliable BAC results;
3. The theory of blood-to-breath ratio underlying the algorithmic functions used by the Alcotest 9510 to produce BAC results remains sound science;
4. The methodology employed by OAT from September 14, 2014 to the present produces scientifically reliable BAC results;
5. The annual certification methodology employed by OAT from June 2011 to September 14, 2014, did not produce scientifically reliable BAC results; however, the Commonwealth may demonstrate to the trial judge, on a case-by-case basis, that a particular Alcotest 9510 was calibrated and certified using scientifically reliable methodology, and thus that a particular BAC result is scientifically reliable.
In early August 2017 it came to light that the Office of Alcohol Testing had intentionally withheld 432 failed annual calibration worksheets from discovery provided to the prosecutors and defense attorneys during the Daubert/Lanigan hearing. On August 19, 2017, the consolidated defendants filed a Motion to Compel and Impose Sanctions.
Stipulation by the parties:
On August 14, 2018 the Commonwealth presented Judge Brennan with a Joint Stipulation of Facts and Recommended Resolution to the Defendants’ Motion for Sanctions for the Court’s approval. The parties agreed:
- To expand the period for which Alcotest 9510 BAC results are presumptively excluded from use
by the Commonwealth at trial;
- That the Commonwealth will not seek to admit such results at trial for this enlarged period in any offense alleging a violation of G.L. c. 90 or 90B, except in cases alleging motor vehicle homicide by operation under the influence, operating under the influence causing serious bodily injury, and operating under the influence of liquor, 5th offense or greater; and
- That the period of presumptive exclusion would be enlarged, dating back to June
2011, when the Alcotest 9510 was first introduced in Massachusetts.
Disputed issue – time period of presumptive exclusion:
- The parties disagreed on the time period that the presumption exclusion of tests should include. The Commonwealth argued that the exclusion period should end when the defendants’ received all failed or incomplete worksheets on August 31, 2017; however, the defendants maintained that it should extend until OAT obtains accreditation from the ANSI-ASQ National Accreditation Board (ANAB).
After a hearing in Salem District Court in November 2018, Judge Brennan adopted the joint stipulation by both parties agreeing that the Commonwealth will not seek to admit a breath test result at trial in any offense alleging a violation of G.L. c. 90 or 90B, except in cases alleging motor vehicle homicide by operation under the influence, operating under the influence causing serious bodily injury, and operating under the influence of liquor, 5th offense or greater from June 2011 when the Alcotest 9510 was first introduced in Massachusetts until the Commonwealth, upon motion to this Court, demonstrates:
- That OAT has filed an application for accreditation with ANAB that is demonstrably substantially likely to succeed;
- That OAT’s accreditation application has been uploaded onto the eDiscovery portal;
3. That the ANAB Accreditation Requirements manual is available for viewing on the eDiscovery portal;
4. That OAT has promulgated discovery protocols consistent with those employed by the State Police Case Management Unit, including a definition of exculpatory evidence and an explanation of the obligations pursuant to such evidence; or, in the alternative, that the CMU is responsible for processing OAT’s discovery;
5.That OAT’s discovery protocol has been uploaded to the eDiscovery portal;
6.That all OAT employees have received training on the meaning of exculpatory information and the obligations relating to it; and
7. That all written materials used to train OAT employees on discovery, and particularly on exculpatory evidence, have been uploaded to the eDiscovery portal.
“If all of these requirements have been met, the Court may still, upon motion of the consolidated defendants, reinstate the period of presumptive exclusion if OAT fails to update the progress of its application for accreditation on the eDiscovery portal or otherwise fails to make good faith efforts to gain accreditation.”
Anticipated accreditation filing:
At the time of the November 2018 hearing in Salem District Court, the application for accreditation was expected to be finalized by February 2019.