If you defend in the criminal courts, and you have cases that were stayed pending the resolution of the Daubert challenge to the reliability of the Draeger evidentiary breath-test device, you may be searching for some guidance with your cases. The Courts appear to be pushing lawyers to select a trial date for these cases.
This is not the case, because it is the date of the annual inspection performed before the breath-test that is at issue. The practitioner must examine the date of the annual certification and project that date out one year to determine if the case is “presumptively unreliable” as defined by Ananias
501 CMR 2.06 requires that every Draeger 9510 breath-test unit be certified by OAT annually. When the OAT chemist performs this annual procedure, a checklist (also referred to as a “worksheet”) is used to memorialize the performed steps. In performing the annual procedure, a 20-page written protocol referred to as OAT-D006 sets forth the details of the work that must be performed.
The Court ordered the production of these worksheets, and OAT provided copies of the first page of each worksheet package. During testimony before the Court, witnesses for both the Commonwealth and the Defendants testified that the worksheets were not written protocols, and it was this testimony that likely convinced the Court to enter the order that found that those inspections performed without a written protocol were presumptively unreliable. This emphasis on “written protocol” can be the source of other discovery tools for the practitioner in the course of the representation of any OUI case.
As the practitioner moves forward with cases that do not qualify as presumptively unreliable tests, one should consider footnote 17 in the decision. If the citizen breath test sample resulted in a .08/.09 the level of uncertainty might provide great assistance defending the case. Footnote 17 emphasizes the importance of this budget of uncertainty/margin of error. The two week hearing emphasized from both the prosecution and defense the importance of this information. Testimony was also clear that the Office of Alcohol Testing is capable of providing this level of uncertainty/margin of error. Hence, it must be requested and utilized in the defense with a jury instruction of potential to exclude the result altogether.
The Office of Alcohol Testing provided over 2000 PDF pages of worksheet cover pages. There were eleven different versions of these worksheets, which indicated that the protocol had been changed ten times during the time that there was no written protocol. All of these changes occurred prior to September 14, 2014 and were performed prior to the presence of written protocols. The earliest worksheets provided by OAT were for inspections performed on June 10, 2011 for Andover, Haverhill, Salem and Peabody.
There are annual inspections referenced on subject test reports that were performed between January 2011 and June 10, 2011. There are only about 70 subject tests that reference inspections during this time, but each of these subject tests reference annual inspections for which there was no worksheet and no written protocol. These subject tests have literally no documentation that relates to the annual inspection, and if your client is one of these tests, it is suggested that you have the strongest arguments against the reliability of the subject test.
There are 391 annual inspection worksheets for inspections performed starting in June 2011 through the end of May, 2012. These inspections are a predicate for over six thousand subject tests that reported a valid result at or over a “.08”, and thus likely resulted in some legal process against the subject. The Ananias decision, at #5 on page 32, found that annual certifications performed “by OAT from June, 2012 to September 14, 2014 … did not produce scientifically reliable BAC results”. Whether this 2011 year was a scrivener's error, or relied on mistaken witness testimony of when the first units were introduced, nevertheless the annual inspections for subject tests are not reliable. Tests that depend on annual inspections performed between June 2011 and June 2012 were performed without the benefit of a written protocol, and results from such inspections produce subject tests that are presumptively not reliable.
Some reports indicate that prosecutors in some courts are arguing that tests that depend upon inspections performed between June 2011 and June 2012 are reliable because the Court decision said so. Until such time as the matter is corrected, or a higher court issues a decision correcting this problem, you will need to argue that tests prior to June 2012 had the same problem as inspections performed between June 2012 and September 14, 2014. Testimony at the hearing from the Office of Alcohol Testing clearly represented that no written protocol existed until September 14, 2014.
Fourteen thousand of the presumptively unreliable subject tests with results that would result in prosecution depended on inspections performed between June 2012 and September 14, 2014. These subject tests should be excluded with either a motion to suppress or a motion in limine. If the Court declines to exclude the breath-test, you will need to obtain discovery of how the government will prove the reliability of the annual inspection process employed for this 9510 unit, for the inspection performed prior to your client's test. Logistically, this will require a decision well before the trial, and prior to the completion of discovery.
If the subject test relies on an inspection that is after September 14, 2014 and is close in time to the date, you may assert that the Commonwealth must prove not only the existence of the written protocol, but further that the laboratory had trained the chemist who performed the inspection, and had actually begun using the written protocol. To determine whether this is the case, you will need to obtain discovery of the training process, emails, and obtain copies of the training materials.
Subject tests that depend on an inspection that was performed after May 18, 2016 may be suspect if the changes to the written protocol, as resulted in Version 2 of the D006 protocol, were not grounded in good science. Discovery requests for the experiments and studies conducted to justify the loosening of the accuracy standards might disclose that the revisions were not grounded in good science, and thus the subject tests are not reliable.
In the final days of testimony, it was disclosed that the method of comparing the fuel cell measurement with the infrared measurement, a process that is designed to detect substances that are not ethanol but produce an erroneous measurement, were not correctly programmed in a significant number of 9510 units that were checked. In the first ten days of February 2017, according to documents just released by OAT, the 9510 units were verified by printing off this setting in question, and changing it to the value that was claimed in testimony. The investigation regarding re-programming the tolerance level of the fuel cell and infrared detector is ongoing and more information needs to considered before a clear understanding can be obtained. While the lesson of Ananias was that procedures must be documented with written protocols to be scientifically sound, no procedure was produced for the work that was performed, nor were any reports of the units that were incorrectly set produced. Subject tests performed prior to February 2017 may have been performed on 9510 units that were incorrectly configured, and those after were performed on units that were modified using a protocol that is not written and documented, which under Ananias would result in unreliable test results.
If your breath-test is excluded, and you have a trial, you should consider a jury instruction that informs the jury that there was a breath test performed, but the results were unreliable. In today's world, juries have come to understand that when there is not breath-test evidence, it is because the defendant refused to provide a sample, and negative inferences are associated with that situation.
For cases that are tried as a subsequent offense, you should examine the prior offenses to see if they were performed on units that were presumptively unreliable. You should carefully explore and understand whether a motion for a new trial on these prior offenses is in order, based upon new evidence discovered. The litigation surrounding the drug lab Annie Dookhan scandal will likely assist in defining the process and options available to your client. If prior offenses were in Massachusetts on other devices (such as the Intoxilyzer 5000 or the Draeger 7110), you may consider whether the tests being introduced as prior offenses are reliable. Likewise, tests from another state will not be subject to a motion for a new trial on these matters, but you may argue that the tests do not comport with the requirements for tests in the Commonwealth, and therefore should not count as prior offenses in Massachusetts.
Of course any pleas entered for clients who were tested on the 9510 should be evaluated to see if there was a breath test, and if that test was introduce at trial. If it was, and if your client was found guilty of an offense with an alcohol component, you should consider filing a motion for a new trial. The crime lab chemistry cases will again provide guidance in evaluating your situation.
At the time this is being written, there has been no notice of appeal filed by either of the parties in the Ananias case. If an appeal is filed, and if you are not able to exclude the breath-test results, you may seriously consider a stay of your trial until such time as a higher court issues a decision in whatever issues are appealed.