Current Updates On The Massachusetts Breathalyzer Problems
This page provides up to date information on the Draeger Alcotest 9510 challenge provided by Local Breathalyzer expert, Attorney Greg Oberhauser who is one of the lawyers involved in the case.
Latest Update: August 8, 2019
OUI bar in reset mode in wake of ‘Ananias’ – Science behind breath tests back under scrutiny
Chelmsford OUI attorney Gregory D. Oberhauser said he foresees the focus to shift to litigation over issues such as the true error rates of the Draeger Alcotest 9510 devices as well as deviations in test results caused by deviations in the temperature of the test solutions used in the machines.
“They’re trying to say the standard deviation of error is down to 2 or 3 percent, but a good argument can be made that there’s a much wider error rate,” he said.
Oberhauser said he would also turn to more traditional means of invalidating breath-test results, such as establishing that a breath-test operator failed to conduct pre-test observation of the defendant for 15 minutes as required by state regulations.
Read More: Massachusetts Lawyers Weekly (subscription needed)
July 29, 2019
Judge ends presumptive exclusion of breath tests
A District Court judge has retroactively lifted the “presumption of unreliability” that for more than two years has kept breath-test results out of all but the commonwealth’s most serious drunken-driving cases.
The judge’s order applies to 9510 devices calibrated and certified by the State Police Office of Alcohol Testing “on or after April 18.”
Although the date is April 18th, the Draeger Alcotest 9510 machines have to be calibrated in accordance with updated standards which 90% have not.
Read More: Massachusetts Lawyers Weekly (subscription needed)
April 4, 2019
Skirmishes over breath tests point to battles to come – Judge excludes ‘9510’ result in vehicular homicide case
Defense attorneys are touting a March 14 decision from Malden District Court as demonstrating persistent dysfunction at the State Police Office of Alcohol Testing, the agency responsible for calibrating the Draeger 9510 breath-testing devices used in the commonwealth.
“We’re still finding errors within the protocols,” Oberhauser said. “They weren’t being vetted. And they have not done their validation studies. That takes a while.”
Read More: Massachusetts Lawyers Weekly (subscription needed)
January 9, 2019
Another success! The use of breath test is suppressed until the Office of Alcohol and Testing can comply. Read a partial part of the ruling below and use the link to open/download the pdf of the full motion.
EXPANSION OF THE COURT’S FEBRUARY 2017 ORDER
On February 16, 2017, this Court ordered that the defendants’ Daubert motion be allowed “as to any results produced by a device calibrated and certified between June of 2011 and September 14, 2014, subject to the possibility of a case-by-case demonstration of the reliability of OAT’s calibration of a particular device to a trial judge in the court in which the Commonwealth seeks to offer the result as evidence.”
Commonwealth v. Ananias, et. al., 1248CR001075, 32 (2017). The parties agree to expand the period for which the instrument shall be deemed “presumptively . . . excluded” from use by the Commonwealth. Id. at 31.
The Commonwealth further agrees not to seek to establish the reliability of OAT’s calibration and certification on a case-by-case basis in this enlarged period 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, in violation of G.L. c. 90, § 24G; operating under the influence causing serious bodily injury, in violation of G.L. c. 90, § 24L; and operating under the influence of liquor as a 5th or
greater offense, in violation of G.L. c. 90, § 24(1)(a)(1).12.
The parties have good-faith disagreements as to the date to which this period should be enlarged and agree to submit the question for a hearing. The parties agree to be bound by the decision of this Court. The parties agree that the earliest date at which said period shall end will be August 31, 2017, and the latest date shall be the date at which OAT achieves accreditation.
Latest Update: October 17, 2018
The Court will be holding a hearing on October 22, 2018 at 9:00a.m. at Salem District Court on one unresolved issue — the date before which certain breath-tests shall be excluded. The Commonwealth proposes breath-tests prior to August 31, 2017 should be presumptively excluded, while the defense proposes that breath-tests that depend on a calibration performed prior to the date of accreditation (not yet achieved) of the Office of Alcohol Testing should be excluded. The Court will decide this issue and include the exclusion criteria in its order.
Documents referencing the above action and The Parties’ Joint Stipulation Of Facts And Recommended Resolution To The Defendants’ Motion For Sanctions:
August 17, 2018
Thousands could seek new drunken-driving trials over faulty breathalyzer
Thousands of people convicted of drunken driving since June 2011 will soon be able to seek to have their convictions set aside and to get new trials as a result of an agreement between prosecutors statewide and defense attorneys.
Oberhauser, a Lowell-based attorney deeply familiar with the science behind the machines, said the state should be forced to prove that the machines are reliable.
“They should be forced to verify that they’ve got a good product that can be trusted by the public and by the courts,” Oberhauser said. “I think more and more the need to get public trust and public safety needs to be forefront.”
Read more: Lowell Sun
Additional article published at the Boston Globe: Thousands convicted of OUI could seek new trials under tentative deal on breathalyzers
August 16, 2018
Defense bar sees lot to like in proposed breath-test deal
The attorneys for the consolidated Ananias defendants are Springfield’s Joseph D. Bernard and Thomas E. Workman of Taunton.
Lowell OUI and criminal defense attorney Gregory D. Oberhauser praised Bernard and Workman for “getting the football across the goal line” in Ananias.
“The commonwealth had to wake up and see what was going on,” Oberhauser said of the proposed agreement.
With the settlement in Ananias pending, Oberhauser said his advice for defense counsel is to get as many of their clients’ cases to trial as possible. With breath tests currently not being introduced by prosecutors, he said he has won 52 of 57 trials since October, most involving clients with test results over .08.
“They need to get all their ducks in a row before we let this black box go out and destroy people’s lives,” he said.
Read More: Massachusetts Lawyers Weekly (subscription needed)
December 12, 2017
Mass. legal challenges put breath test results on hold
District attorneys statewide have suspended the use of test results from a widely used breathalyzer machine as the state sorts through thousands of documents that should have been turned over to attorneys challenging the machines’ reliability.
Lowell Attorney Greg Oberhauser, who is certified as a forensic lawyer-scientist by the American Chemical Society, said officials have said in court that about 95,000 documents that should have been turned over have since been identified.
Read the full article at Lowell Sun.
October 16, 2017
Boston 25 News Investigates: Breathalyzer boss fired amid inaccurate testing
According to a spokesman for the state Executive Office of Public Safety and Security, Melissa O’Meara was fired from her position as head of the Office of Alcohol Testing.
O’Meara’s Monday dismissal comes after Investigative Reporter Eric Rasmussen pressed the state for answers on Friday about why an investigation into inaccurate breathalyzer tests for suspected drunken drivers had been delayed for weeks.
Read the full article at Fox 25 Boston.
August 25, 2017
OUI attorneys see ‘Camblin II’ as key test of Alcotest devices
SJC ruling may foreshadow fate of ‘Ananias’ defendants
The justices are scheduled to hear Commonwealth v. Camblin on Sept. 7. It will be the second time the court hears the case.
In Camblin II, the SJC will decide whether District Court Judge Mark A. Sullivan reached the proper conclusion when he ruled on remand that the Alcotest 7110 functions in a manner that “reliably produces breath test results.”
Camblin II will be closely watched by attorneys mounting a challenge to the reliability of the Alcotest 9510, currently percolating in Concord District Court in Commonwealth v. Ananias.
Gregory D. Oberhauser of Lowell is a member of the Ananias defense team who filed an amicus brief in Camblin I on behalf of the DUI Defense Lawyers Association.
Oberhauser said Camblin has already been of assistance to defense lawyers in Ananias.
“What the justices recognized in the [Camblin I] decision was that we had a good reason for what we were doing in the Daubert-Lanigan hearings,” he said. “Being foreclosed from that [in Camblin] opened their eyes. That helped us quite a bit in Ananias because we were able to get more information on the good and the bad of how [the State Police Office of Alcohol Testing] has been operating and not following forensic science principles.”
Click here to read the full article.
August 23, 2017
Thousands of OUIs may blow away – Lawyers: Breath test data hidden
If it is determined that the state withheld relevant evidence regarding the devices, it could affect cases from 2011 to “at least” February 2017, Bernard said.
“We believe this was the intentional withholding of a treasure trove of documents,” said Thomas Workman, an attorney and forensic scientist who has worked on the case. “It appears to have been intentional. That’s very troubling.”
Read the entire article: http://www.bostonherald.com/news/local_coverage/2017/08/thousands_of_ouis_may_blow_away
February 16, 2017
The Memorandum of Decision on the Draeger Challenge
All breathalyzer tests using the Draeger 9510 before September 14, 2014 are in question. That effects 33,000 breath tests because of bad work by the OAT.
…Without demonstrating a scientifically sound methodology, the Commonwealth cannot convince the Court that Alcotest 9510 devices deployed or last certified by OAT prior to September 14, 2014 were calibrated routinely in a manner that would produce scientifically reliable results. Accordingly, any Alcotest 9510 BAC result from a device calibrated and last certified by OAT between June, 2012 and September 14, 2014 presumptively is excluded from use by the Commonwealth in any criminal prosecution. Click the link below to download the pdf with the details of the full decision.
February 02, 2017 Update
COMMONWEALTH OF MASSACHUSETTS – MIDDLESEX, SS
BOSTON MUNICIPAL AND
DISTRICT COURT DEPARTMENTS
DOCKET NOS. 1248CR3898,
1201CR1075, and others
EVANDO ANANIAS, CHRISTIAN FIGUEROA, AND OTHERS
COMMONWEALTH’S NOTICE OF DISCOVERY
Now comes the Commonwealth in the above-entitled matter and hereby states that it has this day provided copies of the following discovery material to counsel of record for the defendants:
The Commonwealth learned from Draeger, through Brian Shaffer, that after reviewing the Table of breath test results compiled by the consolidated defendants where the IR and EC agreement were outside of the “.008 or 10%, whichever is greater” range, they, with assistance from OAT, began to look into the issue. There is a setting in the instruments that would be set at 38mg/L in order for the agreement to be the “.008 or 10%, whichever is greater” but that the setting was at 60mg/L in two of the instruments from the list and at 30mg/L, a setting more favorable to the subject, in three other randomly chosen instruments not on the list. If set at 60mg/L the IR/EC agreement range would be .0126. As of today’s date five instruments have been tested, but more tests will be run on the other instruments moving forward; a plan is being formulated as to how and when that will be done. Based on the Commonwealth’s review of the database (2011-October 2015) the only tests falling outside the “.008 or 10% whichever is greater” range are the fifteen listed on the table. The Commonwealth also learned that when the breath test result is near zero the algorithm is not run to check for the IR and EC agreement being within .008 or 10%.
Any additional discovery material will be provided under separate cover upon receipt of same by the prosecutor.
This 1st day of February, 2017.
For the Commonwealth,
MARIAN T. RYAN
By_Laura S. Miller__________
Laura S. Miller
Assistant District Attorney
15 Commonwealth Avenue
Woburn, MA 01801
Tel: (781) 897-8942
December 28, 2016 Update
A historic challenge is being waged on behalf of all DUI/OUI/DWI defendants in Massachusetts who took the Breath Test (BT) using the Draeger Alcotest 9510 machine. How is this being done and why will be addressed below this is meant to be an information page to keep all apprised of the ongoing litigation.
To start, the BT is also known as the black box that sends you to jail if you blow into it and the reading is over 0.08 percent of ethanol in your blood stream, also called the Per Se Law. The Legislature of Massachusetts felt so confident that the breath test machine was so good that they did not do any testing to see if it is accurate and reliable. No one knows how the machine works and whether it is accurate and reliable.
The above mentioned Challenge is designed to see if the Draeger Alcotest 9510 is scientifically reliable and accurate.
This challenge actually began in 2008 with the old Draeger 7110 machine in an attempt to look at the source code and whether it was actually accurate and reliable. A judge ruled that because the Legislature said it is good then no Court should touch it, hence if it reads over 0.08 you go directly to jail. Case closed. One can see this case called the Camblin (HL) decision. This case is still proceeding almost parallel to the present case.
Well our 4th Amendment, Due Process and the Confrontation Clause does not allow cloak and dagger litigation—to prepare for a defense we as OUI defense lawyers needed to know how the machine works in order to attack the readings. Too many times videos show a person seemingly sober but the machine reads over a 0.08. This is called a disconnect defense, are you going to trust your eyes or the lying machine?
The present case sets new precedence. For the first time in the U.S. we were able to compel the Government to turn over two (2) Draeger 9510 Breath Testing Machines for not only dynamic but static testing of the machine. Dynamic testing is taking the machine apart to see how it works and to test it in a number of different scenarios. Static testing is reading the source code and seeing how the code implements the science and technology along with if it meets industrial standards.
What is the hearing all about?
It is called a Daubert- Lanigan hearing where five (5) issues must be resolved in order for the results of the breath tests can be offered to the fact finder, ie jury. Adopted and endorsed in Lanigan are as follows:
- whether the theory or technique can be and has been tested;
- whether the theory or technique has been subject to peer review and publication;
- whether a particular scientific technique has a known or potential rate of error;
- whether standards controlling the technique’s operation exists and are maintained; and,
- whether the technique is generally accepted in the relevant scientific community.
The Government has the initial burden of proving that the BT results and machine are reliable and accurate then the defense will attempt to show that the reliability of the machine is inaccurate and can’t be trusted.
If you are a defendant and want more information, please feel free to contact Attorney Oberhauser at www.Oberhauserlaw.com or at 978-452-1116.
Hearings begin January 17-20, 2017 in Concord District Court, Concord, Massachusetts.
What the defense expects to prove and to show that the machine is not reliable nor accurate.
- The source code utilized in the Alcotest
9510 fails to meet accepted industry standards and best practices as it concerns revision control systems, programming best practices and security practices and the use of a USB access key, in the relevant field that results in unreliable Breath Alcohol Content Percentage (“BAC”) results;
- The source code utilized in the Alcotest 9510 operates using unchecked return values resulting in unreliable BAC% results;
- The source code utilized in the Alcotest 9510 utilizes an electrochemical sensor bit location in hardware configuration that results in unreliable BAC% results;
- The source code utilized in the Alcotest 9510 operates using uninitialized variables that results in unreliable BAC% results;
- The source code utilized in the Alcotest 9510’s has flawed data integrity and management programming that results in unreliable BAC% results;
- The source code utilized in the Alcotest 9510 operates using clipping of sensors measurements that results in unreliable BAC’% results;
- The source code utilized in the Alcotest 9510 operates using a flawed programming for hardware error checking and results in unreliable BAC% results;
- The electrochemical sensor used in the Alcotest 9510 experiences fatigue and affects the reliability of results especially with regard to long-term performance of the Alcotest 9510;
- The Alcotest 9510 calibration protocols are flawed and do not result in accurate calibration rendering unreliable results;
- The Alcotest 9510 fails to detect and accurately report interfering substances and results in unreliable BAC% results;
- The Alcotest 9510 methodology implemented in the development and use of the machine does not meet relevant industry standards of traceability, an uncertainty budget or measurement of uncertainty necessary to determine the accuracy of and error rate associated with any reported BAC%, resulting in unreliable BAC% results; and,
- The Alcotest 9510’s application and methodology relies on flawed scientific theories and principles as applied, including aspects of Henry’s Law, and results in unreliable BAC% results.
Furthermore, it is asserted that the Alcotest 9510’s methodology and application of the methodology is unreliable and inadmissible as a result of
- The lacking of general acceptance in the relevant community as it concerns the source code programming, best practices, calibration methodology, and reliance on scientific principles not applicable to the Alcotest 9510.
- That the Alcotest 9510’s source code and its operation has not and cannot be adequately subjected to adequate testing, peer review and publication as a direct result of the conduct of its manufacturer.
- That there is no reported error rate or attempt to demonstrate unreported and undetected errors that can and do occur in the operation of the Alcotest 9510 using the current source code.
- That the Alcotest 9510 methodology, underlying theory or process, is not governed by recognized standards.
Wherefore, for the reasons set forth herein and (1) as set out in the previously submitted reports of various experts and witnesses that give examples and details of these many issues, (2) the memorandum accompanying this motion that summarizes the many issues raised in this motion, and (3) as set forth in the attached memorandum the application of relevant law the Defendant move to exclude the evidence.
Alternatively, the Defendants move for a hearing wherein the proponent of the evidence, the testing results produced by the Alcotest 9510 and any and all opinion testimony, must demonstrate that the evidence is reliable and admissible.
Failure to exclude such evidence, or alternatively, to require the proponent to demonstrate its reliability would violate the Defendants’ rights to due process, a fair trial, the confrontation of witnesses, to present a defense, to not have unreliable evidence presented, under the 5th, 6th and 14th Amendments to the Federal Constitution, art. 12 of the Massachusetts Declaration of Rights, the common law’s prohibition to the introduction of unreliable evidence. See Commonwealth v. Camblin, 471 Mass. 639 (2015); Commonwealth v. Lanigan, 419 Mass. 15 (1994); Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Kumbo Tire Co. v. Carmichael, 562 U.S. 1 (1999)’ Massachusetts Guide to Evidence, Section 702; see also Strengthening Forensic Science in the United States: A Path Forward, National Research Council, National Academies Press (2009).
This should give you an idea of what we at Oberhauser Law do when you hire Gregory D. Oberhauser to fight your case. Stay tuned for more information and if we can fight for you call us at 978-452-1116 today!