The fight isn't over. Although Judge Brennan has ruled in Commonwealth v. Ananias, Figueroa and Others that some breathalyzer test results are presumptively excluded from evidence, the Commonwealth has nonetheless been pushing the boundaries of his decision.
In February 2017, Judge Brennan ruled that breathalyzer tests that were performed on Draeger 9510 machines last calibrated between June 2011 and September 14, 2014, are presumptively excluded from evidence. He found that before September 14, 2014, the Massachusetts Office of Alcohol Testing (OAT) did not have any formal written protocol in place directing the annual calibration of the Draeger 9510 machines.
As a result, Judge Brennan held that “[w]ithout 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,” presenting a significant blow to the Commonwealth.
However, he left the door open for the Commonwealth to present witnesses, presumably calibrating scientists from OAT, on a case-by-case basis, to demonstrate to a trial judge that the breathalyzer test results in a particular case are the product of a properly calibrated machine.
The Commonwealth has taken advantage of this opening, and have presented motions to courts, particularly in Middlesex and Essex counties, to allow the breathalyzer test results into evidence in cases where such results have been deemed presumptively excluded.
On May 9, 2017, Attorney Bernard was in the Framingham District Court as one of the lead counsel from the Ananias case. The Commonwealth attempted to admit into evidence a presumptively excluded breathalyzer test result by having the chemist who calibrated the machine testify to convince the Court that the calibration was done properly, despite the fact that there were no protocols in place at that time. Attorney Bernard and Attorney Rakhlin persuaded Judge Jennifer Stark to re-affirm the exclusion of the breathalyzer test result - a significant piece of evidence in an OUI case. Together, Attorney Bernard and Attorney Rakhlin laid the groundwork for other attorneys across the state with OUI cases to continue fighting the Commonwealth's attempts to admit presumptively excluded breathalyzer test results.