NORTHAMPTON — The Northwestern district attorney’s office plans to contact roughly 3,100 people in Franklin and Hampshire counties convicted of operating under the influence of alcohol between 2011 and 2018, informing them that they may be entitled to seek a new trial due to unreliable Breathalyzer results.
Litigation in the Boston municipal and district court departments resulted in breath test results in criminal cases during this seven-year period being deemed inadmissible for many thousands of defendants statewide.
In February 2017, Judge Robert Brennan ruled the Dräger Alcotest 9510 — the type of Breathalyzer in question — produces scientifically reliable blood-alcohol content results, but that there was a deficiency in the annual calibration and certification methodology employed by the Office of Alcohol Testing between June 2011 and September 2014.
After this decision, First Assistant District Attorney Steven Gagne said, it was discovered the testing office had not turned over documentation regarding 432 worksheets documenting failed or incomplete calibrations. This, Gagne said, opened a new round of litigation, which was not resolved until July 29, 2019, when Brennan ruled that all Breathalyzer results between 2011 and April 18, 2019 were excluded.
Criminal defendants who took the breath test between 2011 and 2018 and were subsequently convicted of OUI-alcohol will be formally notified 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 defendants whose cases were “continued without a finding” and eventually dismissed after a probation period.
Gagne explained Brennan’s evidentiary hearing created some level of doubt regarding the cases involving the Alcotest 9510. He said defendants have the ability to seek a new trial or vacate their plea if that Breathalyzer was used.
“I think anytime we are enhancing the reliability of science being introduced at trials, it’s a positive,” he said. “Having said that … I would challenge the notion that thousands upon thousands of defendants were wrongfully convicted.”
But Gagne said first offenders — who can resolve their OUI issue by completing a safe-driving course — that revive their case risk being convicted at trial, but that choice is up to each individual defendant. He explained Breathalyzer results are often just one piece of evidence used when prosecutors are building an OUI-alcohol case. Gagne said there may have been overwhelming evidence — such as speech impairment or motor vehicle infractions — of a person’s guilt. He said it is “the rarest of rare cases” in which Breathalyzer results are the only evidence in a case.
Gagne said the Northwestern district attorney’s office had suspended the breath test results in July 2018, meaning there were no “affected cases” between July 2018 and April 2019.
Gagne said any charge pertaining to impairment by alcohol “would theoretically be susceptible to being reopened,” including manslaughter while operating under the influence. He said the government will triage the reopened cases to determine “which of them are worth pursuing” for a conviction.
Gagne said Brennan’s ruling resulted from a group of OUI defendants who filed a Daubert-Lanigan challenge, which occurs when a defendant believes some scientific evidence used is insufficiently reliable. He said this could pertain to a DNA instrument or a radar gun.
Evando Ananias, this litigation’s lead defendant, was charged with OUI in August 2012 in Ayer District Court. Gagne said Brennan held lengthy evidentiary hearings, with testimony from experts who flew in from around the country.
