November 2017 - Motion to Withdraw OUI - Second Offense Guilty Plea Allowed
My client had a closed case where he was convicted of OUI - Second Offense from 2014. He had submitted to a breath test and the result was used as evidence against him.
Potential incarceration for no less than 60 days, 30 days mandatory, with a fine between $600 and $10,000, in addition to a 2-year loss of license for the conviction.
The breath test result used to prosecute my client was obtained from a Draeger 7110 breathalyzer. I successfully argued that based on Judge Brennan's decision in Commonwealth v. Ananias, this breath test result is now presumptively excluded from evidence and cannot be used to prosecute a defendant. I filed a motion to withdraw the OUI-2nd offense conviction based on Judge Brennan's decision even though the defendant's breath test was obtained on a different breathalyzer machine than the one challenged in Ananias. Judge Brennan found that breath test results are presumptively unreliable if there is no protocol standardizing the annual calibration process. I learned through Freedom of Information Act requests that there was no protocol standardizing the annual calibration process for the Draeger 7110 breathalyzers, and successfully argued that this was newly discovered evidence that entitled my client to a new trial. The motion to withdraw was allowed and the case was re-opened.