Court Suppresses Breathalyzer Results In 27,000 DUI Cases After Years Of Being Jerked Around By The State Crime Lab

(Mis)Uses of Technology

from the cheating-to-win dept

For more than a decade, the Massachusetts State Police crime lab hid information from judges, prosecutors, and criminal defendants. This is nothing unusual for this state and its crime labs. The words “Massachusetts,” “crime lab,” and “scandal” have gone hand-in-hand for years.

[Heads up, I will be using “state” to refer to the Massachusetts government in this post. I’m fully aware it refers to itself as a “commonwealth,” but come on: the state’s name is already too much typing.]

Drug labs staffed by technicians willing to either falsify results (rather than actually perform tests) or turn seized drugs into their own personal use stash have resulted in courts tossing nearly 30,000 drug convictions. Losing this many (unearned) wins must have hurt, but apparently state law enforcement has a taste for pain.

This state superior court decision erases 27,000 DUI convictions due to the government’s apparently unending misconduct. The State Police’s Office of Alcohol Testing (OAT) is at fault here. Class action suits prompted by faulty breathalyzers (both versions under discussion manufactured by Draeger) have resulted in a lengthy legal battle that dates back to 2013. For nearly that same amount of time, the state police’s lab has been doing everything it can to ensure those suing over the tests had no access to the information needed to prove their case. (via Short Circuit)

The upshot is in the headline. The decision [PDF] opens with the court noting it is deploying rare and extreme measures to right the wrongs this extension of law enforcement has created.

In this case we are asked to exercise our extraordinary superintendence powers under G. L. c. 211, § 3, in light of government misconduct involving the State police office of alcohol testing (OAT) and its use of the Draeger Alcotest 9510 breathalyzer device.

How rare and how extreme? (Citations removed for clarity and conciseness.)

The extensive nature of OAT’s misconduct, and the inability of the defendants in the consolidated cases challenging the reliability of the Alcotest 9510 device […] to receive a fair Daubert-Lanigan hearing […] have resulted in the violation of the right to due process for approximately 27,000 defendants. Accordingly, defendants who pleaded guilty or who were convicted after trial, and the evidence against whom included breath test results from the Alcotest 9510 device from June 1, 2011, through April 18, 2019, are entitled to a conclusive presumption of egregious government misconduct. They may proceed in motions to withdraw their guilty pleas, and motions for new trials, without having to establish egregious government misconduct in each case, […] and their breath test results are excluded from use at any subsequent trial.

That is huge. This gives these 27,000 defendants a head start should the state (unwisely) decide to re-prosecute these cases. The government will be assumed to be in the wrong and (likely) the only evidence presented is preemptively suppressed.

How did the state get itself into this mess? Well, it all starts with the OAT and its multiple decisions to hide information that might indicate the Draeger breathalyzers state cops deployed were faulty, in disrepair, or otherwise not as accurate as cops and prosecutors claimed in court.

The entire 46-page decision is worth reading. It explicitly details the many, many times the state police lab withheld records from defendants in violation of court orders. The decision also makes it clear these violations were deliberate and encouraged by lab officials who acted affirmatively to bury information that might make the machines look less than reliable.

But if you don’t have the time to read the whole thing, that’s why I’m here. I’m bringing the highlights!

First off, the lab was so interested in preserving the perception of breathalyzers as infallible it would deny prosecutors access to repair orders or failed certifications unless the prosecutors obtained a court order mandating release of this information. That’s INSANE. It’s unlikely many prosecutors sought this info because it wasn’t listed on the pre-printed form produced by the OAT. And even if they wanted this info, the lab’s supervising scientist, Melissa O’Meara, would do what she could to prevent the release of possibly exculpatory information.

In 2016, while dealing with a class action lawsuit possibly affecting thousands of DUI cases, a court ordered the OAT to turn over breathalyzer certification worksheets, as well as documentation on the certification process used by the lab. That’s where the fuckery began:

The crime lab’s attorney conveyed the substance of the court’s order to O’Meara, who coordinated the production of responsive documents. The attorney did not participate in the actual review, collection, or production of the documents. Ultimately, OAT produced a digital versatile disc (DVD) containing more than 2,000 certification worksheets and a few failed, incomplete worksheets. The crime lab attorney submitted the DVD to the court and represented that it contained “all of the worksheets for certification[,] as the [court] ordered all be turned over.” Unbeknownst to the prosecutors and defense attorneys, at that time, OAT had not produced all of the certification worksheets that had been ordered.

Once more information was obtained, the court ruled (in 2017) that tests performed between 2011 and 2014 were not “scientifically reliable.” It also discovered the lab had no standardized certification process, relying on “word of mouth around the lab” to prep machines for field deployment.

Litigation continued in this suit. More litigation ensued once it had been made public the breathalyzers weren’t trustworthy, at least not as tested and deployed by the state police.

What was observed in 2016 — the hiding of data and information by the OAT — continued. More highlights:

On August 2, 2017, during a hearing in the District Court on one such case, where an OAT employee had testified, the judge determined that OAT had failed to disclose exculpatory “failed certification” worksheets demonstrating that the particular Alcotest 9510 device at issue had failed certain certification tests. Contemporaneously, the Ananias litigation defendants received a response to a Freedom of Information Act request; the response contained a significantly larger number of the same type of documents that were ordered to be produced in the Ananias litigation prior to the Ananias I decision, indicating that OAT had failed to produce hundreds of similar failed worksheets that were considered to be exculpatory.

Having seen this, the judge ordered an investigation. Here’s how that went:

In an extensive report following a six-week investigation, EOPSS [Executive Office of Public Safety and Security] identified a history of intentional withholding of exculpatory evidence by OAT, blatant disregard of court orders, and other misconduct, all underscored by “a longstanding and insular institutional culture that was reflexively guarded.” The discovery practices that led to the withholding of exculpatory evidence predated the Ananias litigation.

And there was someone encouraging this: the “supervising scientist,” who (as you might infer from their title) was not a lawyer.

[T]he EOPPS report highlighted that OAT scientists responding to discovery requests were instructed not to provide failed worksheets. If a scientist included such a worksheet in the discovery package, O’Meara would insist that the failed worksheet be removed, because she considered it to be nonresponsive.

This led to the state stepping in and ordering the OAT to stop fucking around. It said all requests should be honored. It said prosecutors did not need a court order to obtain documents not included on the OAT’s request checklist. It ordered training of OAT employees to recognize exculpatory info and have it prepped for release. These efforts resulted in the OAT turning over “tens of thousands” of documents to prosecutors it had previously withheld.

The OAT tried to help prosecutors win by helping them cheat. Prosecutors love wins, so it’s likely at least some of them were aware the lab wouldn’t undercut their probable cause by calling into question the reliability of the breathalyzers. Whether or not state prosecutors were complicit, they’re now in possession of 27,000 losses. Maybe this might force them to be a bit more skeptical of their law enforcement collaborators. But chances are, given this state’s sordid crime lab history, no one putting people in jail is going to worry about anything as long as they still get to put people in jail.

Filed Under: breathalyzer, evidence, massachusetts, massachusetts state police
Companies: draeger