The Background Information Regarding the State Investigation of the Office of Alcohol Testing

In 2015, a decision came down from the Massachusetts Supreme Judicial Court, which permitted counsel for defendants to challenge the scientific reliability of the breath testing device being used at the time, which was the Draeger Alcotest 7110. Commonwealth v. Camblin, 471 Mass. 639 (2015).

This decision allowed defense counsel for defendants accused of OUI who submitted to the breath test to challenge the scientific reliability of the machine being used at the time, which was the Draeger Alcotest 9510 (9510).   Instead of having multiple lawyers challenging the same issue throughout the state, Chief Justice Paul Dawley issued an order on August 10, 2015 consolidating all of the motions that had been filed at the time and assigned the Honorable Robert A. Brennan to preside over all discovery motions and scientific challenges.  There were over 500 cases that were consolidated in this litigation as well as thousands of cases stayed throughout the state waiting for a decision in this litigation.  Additionally, there was a separate litigation in the Boston Municipal Court, which was ultimately joined with the Ananias litigation.

A team of 5 defense lawyers and 5 prosecutors was assembled for each side. Attorney James (Jay) Milligan was appointed as one of the five lead counsel in the statewide litigation to determine whether the 9510 (9510).  The lead case in this litigation was Commonwealth v. Ananias et al. (Docket 12 48CR 1075).

There was substantial amount of discovery involved in this litigation, particularly to the Office of Alcohol Testing (OAT), the state organization that is responsible for maintaining the 9510.  Of particular importance was the request to produce the database of all tests done on every machine in the state and all annual calibration paperwork or so called “worksheets.” In Massachusetts, the regulations state that all breath test machines must be annually inspected by the Office of Alcohol Testing.  During the discovery process the OAT produced 1,972 worksheets for these annual calibrations.

During the ten day hearing in January, 2017, Attorney Milligan was responsible for the examination of Melissa O’Meara, the technical Leader at OAT.  The examination lasted for over 5 hours and based upon her testimony a lot of issues were raised regarding the reliability of the 9510.  Among the issues was the fact that prior to September 14, 2014, there were no written protocols regarding the annual inspection for the 9510.  One official from Draeger, the manufacturer of the 9510, testified at this hearing that this machine must be maintained in order for the 9510 to reliable.  Other experts testified about the need for written protocols to ensure that a systematic approach is used to achieve the same results every time to ensure reliability.  Further, Attorney Milligan was able to gain testimony from Melissa O’Meara that raised issues about the internal settings of the machine.  A later investigation revealed that all but 2 machines throughout the state had the wrong settings since their roll out in 2011/2012.

A decision was ultimately made by Justice Brennan in March 2017.  Based upon the examination of Attorney Milligan and the testimony of Melissa O’Meara and other experts, Judge Brennan found that all breath tests that whose annual calibration was prior to September 14, 2014 should be presumptively excluded from prosecution.  The Judge ruled that the government was not precluded from calling witnesses, presumably chemists from OAT, to demonstrate to a trial judge that a BAC in a particular case is the product of a properly calibrated machine.   Thus, even after the decision the government was filing on a case by case basis motion to admit a presumptively excluded breath test pursuant to this decision.

On, August 2, 2017, Attorney Milligan was lead counsel in Taunton District Court wherein government filed a motion to admit a presumptively excluded breath test. Attorney Milligan in preparation for this hearing sent a subpoena to Melissa O’Meara, the technical leader of the OAT, to bring with her “all” worksheets and documents for the Taunton police department breath test machine.  Prior to this hearing, Attorney Milligan had information that this Taunton breath testing machine had previously failed the annual inspection perhaps 3 times within days of the passed calibration.

An examination of the materials brought by Melissa O’Meara did not yield any “failed” attempts at an annual certification.   However, through examination of the chemist it was revealed that the machine may have failed just days prior and more importantly that this information would have been recorded on a “worksheet.”  At a break in the proceeding Judge Michael Brennan ordered the Commonwealth to produce the missing worksheets.  Sure enough, 3 missing worksheets were provided, that were not in the packet of information that was subpoenaed and provided by Melissa O’Meara.

This was monumental because it confirmed that members of the OAT failed to provide the defense team critical discovery in the Ananias litigation that was exculpatory.  So based upon the efforts of Attorney Milligan in both the Ananias litigation and the hearing in Taunton District Court all prosecution based upon breath testing in Massachusetts have been suspended until further notice.

This potentially impacts thousands of citizens who were charged with an OUI and were prosecuted based upon a breath test reading.  This affects those individuals that lost their jobs, homes, families, went to jail because of an OUI that was based upon a breath test prosecution.

Every individual who was charged with an OUI and submitted to the breath test and either admitted or pled guilty or went to trial and lost has the right to potentially file a motion to vacate their plea or conviction and ask for a new trial.