Press Release  Delays may soon be over in scheduling breath test cases

PITTSFIELD — Since 2014 there have been delays in criminal trials in Massachusetts involving defendants charged with OUI who submitted to a breath test using the Draeger 9510 breath testing instrument.  A group of defendants challenged the admissibility of these test results.

Today all Massachusetts District Attorney’s Offices and legal counsel for the defendants filed in the Concord District Court a Joint Stipulation of Facts and Recommended Resolution to the Defendants’ Motion for Sanctions.  This is a mutual effort to resolve the litigation that has delayed the criminal trials of numerous OUI defendants throughout the Commonwealth.

The Office of Alcohol Testing (OAT), a unit within the Massachusetts State Police Crime Laboratory, initially, and in accordance with a court order, provided annual calibration and certification data for the widely-used Draeger 9510 breath testing instrument.  A Concord District Court judge reviewed the documents and found that some of the testing devices were not properly certified.  He ruled in January 2017 that the Draeger 9510 data results could not be automatically used by the Commonwealth at OUI trials.  This affected all OUI cases in the Commonwealth where a breath test result was obtained from a Draeger 9510 between June of 2011 and September 14, 2014.

A few months later, the Concord District Court judge subsequently learned that OAT had withheld from both prosecutors and defense counsel a number of documents that recorded failed calibration tests.  These documents were provided to prosecutors and defense counsel on August 17, 2017.  The late disclosure of these documents resulted in additional delay in resolving the OUI cases and caused the defendants to file suit and seek monetary sanctions against OAT for withholding this exculpatory evidence.

The Joint Stipulation of Facts and the Recommended Resolution filed today in Concord District Court, includes an agreement by the prosecutors and defense counsel to expand the period of time, to be determined by the Court, when the breath test results are not automatically admissible as evidence by the Commonwealth.  The Commonwealth further agrees not to admit these breath test results at trials in OUI cases within this period, except for cases alleging motor vehicle homicide by OUI, OUI resulting in serious bodily injury, manslaughter by motor vehicle, and OUI 5^th Offense or greater.  The parties also agree that OAT will apply for national accreditation for the laboratory by August of 2019.

The state-wide delay in resolving OUI cases with a Draeger 9510 breath test result has affected 75 cases in Berkshire County as of August 2017.

The Concord District Court has the matter under advisement at this time.

###