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Massachusetts Office of Alcohol Testing Withholding Evidence from Defendants

Posted by Joseph Bernard | Aug 22, 2017 | 2 Comments

Withholding materials that would prove that a defendant was innocent of a crime is a serious matter. In one of the longest hearings in memory, over a two-year period, hearings on the reliability of the Draeger 9510 breath-testing device were conducted in Concord, Massachusetts.The Judge did not know that significant materials (which he had ordered produced to the defendants' attorneys) were not being provided to the attorneys who represented over 400 defendants. The ultimate rulings would determine the outcome of over 58,000 breath-tests in the Commonwealth.

A recent analysis indicates that over 400 documents (that relate to the calibration of the Draeger 9510, the device used in Massachusetts to perform breath-tests) were withheld from the defendants. An analysis of some of the recently recovered withheld documents revealed information that would have changed the way the attorneys presented their evidence. According to Thomas Workman “It looks like someone at the Office of Alcohol Testing went through the documents and removed the ones that they thought contained information that would help the defendants, and then turned over only the documents that helped the government.”

Attorney Joseph Bernard of Springfield Massachusetts was one of those attorneys who challenged the Draeger 9510. Late last week, Bernard and attorney Thomas Workman of Taunton, Massachusetts filed a motion to preserve and to produce documents withheld in the recent challenge to the Draeger 9510 breath testing machines. In addition, sanctions are being sought. Sanctions are a financial penalty for costs incurred by the harmed party. Sanctions are a mechanism the Court can use to discourage improper activities. The court can award sanctions if the court finds that documents were intentionally withheld, and were “exculpatory.” An exculpatory document is a document that could be used to demonstrate the innocence of a defendant in a criminal case.

According to Joseph Bernard “We completed the first step last week, by electronically filing a motion to preserve and to compel production of the withheld documents, as well as to sanction the Commonwealth. I regret that this is necessary, but steps needed to be taken to insure that these documents are not destroyed.”

For our legal system to operate fairly, materials that are in the control of the government and that would undermine the government's prosecution -- must be turned over to defendants. These materials are referred to as “Brady” materials, after the Supreme Court decision of Brady v. Maryland.

“This is one of the most egregious instances of withholding materials I have seen in over twenty years of practicing law,” attorney and forensic scientist Thomas Workman said. “We were told over and over that the materials did not exist and that even if they did exist, they would not be relevant. The Court was told this as well, and more than once. The Court refused to order the production of the materials, reasoning that they could not order production of something that does not exist.”

When told by the Office of Alcohol Testing “there's no written protocol. The worksheets acted as the protocol” the Judge responded to attorney Bernard “Okay. Now you may have issues with that, but it is what it is.”

According to attorney Joe Bernard “We thought that the materials had to exist, and at one point the Commonwealth's witness said that the protocols did not exist, and all of the work was done with worksheets. So I asked the Court to order production of all of the checklists, called worksheets. The Court ordered the Office of Alcohol Testing to produce all of them, and we did receive 1,972 worksheets.”

The worksheets provided had been meticulously culled to remove worksheets that represented failed attempts to perform the annual calibrations. Refusing to release problem calibration activities is consistent with the Office of Alcohol Testing's policy not to release information about failed calibrations in packages of discovery routinely provided to the courts. These materials have an affidavit signed by an Office of Alcohol Testing chemist, under the penalties of perjury, stating that the materials are “full” and “complete,” when in fact they are not.

When the Office of Alcohol Testing first produced the worksheets under court order, the worksheets represented 1,972 calibrations – all for calibrations performed before February 24, 2016. No one except the Office of Alcohol Testing knew that there were 431 worksheets removed from the documents, and that 419 were failed attempts to calibrate the 9510 units. Only 11 of the 1,972 worksheets originally provided were for failed calibration attempts.

Withholding 419 failed attempts to calibrate the 9510 units is serious, because it represents about one failed calibration for each Draeger 9510 used in Massachusetts. The affected 9510 units are from all over the state, from state police units, local police departments, and even the Batmobile mobile units that take the Draeger 9510 units to the sobriety roadblocks.

The withholding of exculpatory documents is a serious problem for the Commonwealth. You cannot prosecute a criminal case if you know there are issues with the evidence you plan to use. According to Joseph Bernard, a former prosecutor “Prosecutors have to think carefully about whether they can proceed with drunk driving cases that have a breath test, they cannot ethically ignore problems they know about. The Commonwealth can always go to trial and not use the Draeger 9510 breath test.”

Thomas Workman added “When this is finally settled, thousands of convictions may have to be set aside so that convictions based on tainted evidence can have a new trial. If that happens, this will have a greater disruption to our legal system than the Annie Dookhan drug laboratory disaster.”

A copy of this press release, the relevant pages from the Court transcript, the letter signed in Court (referred to in the transcript), a list of the 1,972 worksheets produced, a list of the 431 withheld worksheets, the motion and legal memorandum filed, and the affidavit filed are available on the website: www.9510.info, under the tab “Press Release.”

For further information, contact Attorney Joseph D. Bernard at 413-731-9995 or at [email protected]

About the Author

Joseph Bernard

Joseph Bernard has been practicing statewide in Massachusetts for over 20 years. He predominately handles OUI defense along with other motor vehicle charges.


Anthony Gianacopoulos Reply

Posted Aug 23, 2017 at 04:45:49

Joe, do the documents/worksheets that were withheld compromise the integrity of only those specific units or does it extend beyond those specific units or compromise the integrity of the calibration process overall as not producing consistent results?

Erica M. Bruno Reply

Posted Aug 23, 2017 at 13:39:32


Attorney Bernard thinks the best response is to inform you that there are over 50,000 different citizens who his breath test is probably impacted by these worksheets. With that said these 50,000 deal specifically and directly with the problematic worksheets. You must identify the machine and the date the machine was calibrated to determine whether or not your client has been impacted.

A more expansive interpretation would include any and all machines from the beginning of 2011 to the present. That is an extremely aggressive type of thought process but our experts tell me that not having these worksheets compromise all breath test moving forward because they might reveal how the office of alcohol testing corrected problems during the calibration. If the correction/alteration was not scientifically permissible then it would impact every single breath test across Massachusetts.

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