Breath Test Litigation Update: A New Framework for Assessing OUI Convictions Impacted by the Office of Alcohol Testing’s Misconduct

By Casey Silvia

Litigation surrounding the breath test devices used in the Commonwealth has spanned the better part of two decades and resulted in three Supreme Judicial Court (“SJC”) decisions. In the most recent decision, Commonwealth v. Hallinan, 491 Mass. 730 (2023), the SJC created a framework for cases potentially impacted by misconduct at the Office of Alcohol Testing (“OAT”). Under the new framework,  tens of thousands of defendants convicted of Operating Under the Influence (“OUI”) are entitled to a presumption of egregious governmental misconduct should they seek to vacate their convictions. To prevail, however, they must demonstrate a reasonable probability that they would not have pleaded guilty had they known of that misconduct.

Background

            The Alcotest 7110 Litigation

Prior to 2011, Massachusetts law enforcement officers used the Alcotest 7110 to administer breath tests to measure alcohol content in one’s blood. Hallinan, 491 Mass. at 735-737. A consolidated group of defendants moved to exclude their breath test results on the basis that the technology underlying the Alcotest 7110 did not produce scientifically reliable results. Commonwealth v. Camblin, 471 Mass. 639, 640 (2015). After several years of litigation, the SJC held that “because breath test evidence is, at its core, scientific evidence, the reliability of the Alcotest breath test result had to be established before evidence of it could be admitted[.]” Id. at 640. After remand and a Daubert hearing, a District Court judge concluded that the Alcotest 7110 produced reliable results, a finding that the SJC upheld on appeal. Commonwealth v. Camblin, 478 Mass. 469, 469-470 (2017).

            The Alcotest 9510 Litigation

Even before the SJC decided Camblin, in 2011 OAT replaced the Alcotest 7110 devices with a newer model — the Alcotest 9510. Hallinan, 491 Mass. at 735. Hundreds of OUI defendants would challenge the reliability of the Alcotest 9510. Their cases were consolidated and specially assigned to a District Court judge to hold a Daubert hearing. Id. at 737-738. Thousands more cases were stayed pending the outcome of the consolidated litigation. Id. at 738.

Although the consolidated defendants in the Alcotest 9510 litigation raised some issues that were similar to those previously raised in Camblin, they also identified a new issue that would prove critical to the 9510 litigation: the standards employed by OAT to calibrate and certify the Alcotest 9510 devices (“certification”).

In advance of the Daubert hearing, the defendants filed a number of discovery motions, including a request for OAT’s internal documentation of the Alcotest 9510 certification process. Id. The judge ordered the Commonwealth to produce all certification worksheets from 2011 onwards. Id. OAT produced close to 2,000 worksheets indicating that devices had “passed” certification and a very small number of worksheets documenting occasions on which particular devices had failed certification. Id. An attorney for OAT represented to the court that all of the worksheets encompassed by the discovery order had been provided. Id.

The District Court judge held the Daubert hearing in January 2017 and decided that, while the Alcotest 9510 produced scientifically reliable results, the annual certification methodology employed by OAT between June 2011 and September 2014 did not produce reliable results because of OAT’s lack of written certification protocols. Id. at 738-739; see also Commonwealth v. Ananias, Dist. Ct., No. 1248CR1075 (Feb. 16, 2017).  While the judge ruled that OAT’s “methodology produced presumptively unreliable breath test results,” the Commonwealth could demonstrate on a case-by-case basis that individual Alcotest 9510 devices were properly certified. Hallinan, 491 Mass. at 739. Breath test results obtained after OAT instituted appropriate written procedures were deemed presumptively reliable. Id.

After Ananias in 2017, hearings took place across the Commonwealth during which prosecutors sought to demonstrate that OAT had properly certified particular Alcotest 9510 devices. Id. During the course of one such hearing in August of 2017, it came to light that OAT had withheld over 400 failed certification worksheets in contravention of the Ananias discovery order — worksheets which were exculpatory and should have been produced. Id.

As a result of these revelations, the Executive Office of Public Safety and Security (“EOPSS”), which oversees OAT, launched an investigation. Id.

EOPSS subsequently produced a report detailing “a history of intentional withholding of exculpatory evidence by OAT, blatant disregard of court orders, and other misconduct, all underscored by ‘a longstanding and insular institutional culture that was reflexively guarded.’” Id.  Particularly relevant were two cases which preceded the Ananias litigation and involved OAT’s refusal to provide internal records in contravention of discovery orders. Id.

Following extensive negotiations, the parties in Ananias entered into an agreement in which they stipulated that OAT intentionally withheld exculpatory evidence in the form of 432 failed certification worksheets without informing the prosecutors, the defense, or the court. Id. at 742. The parties also agreed that OAT would take several remedial measures, including seeking accreditation and expanding access to discovery. Id. The Commonwealth further agreed that it would not seek to establish the reliability of particular Alcotest 9510 devices in pending cases (with the exception of certain categories of cases, including homicides and some repeat offenders), and it would pay for notices to be sent to more than 27,000 defendants. Id.

The Ananias judge accepted the joint agreement and issued a decision concluding that OAT’s behavior had undermined public trust and deprived the defendants of a full and fair Daubert hearing. Id. After OAT took certain actions ordered by the Court, the judge ultimately found the presumptive period of exclusion of breath test results extended from June 1, 2011 to April 18, 2019. Id.

Commonwealth v. Hallinan

The defendant in Hallinan, whose plea took place in 2013, moved for a new trial after OAT’s malfeasance in the subsequent consolidated litigation came to light. Her motion was denied because she was unable to demonstrate a nexus between the misconduct and her own case. Id. at 731. On appeal, the SJC concluded that OAT’s disregard for its discovery obligations was so pervasive that all defendants whose cases included a breath test from an Alcotest 9510 certified prior to April 18, 2019 were entitled to a conclusive presumption of egregious governmental misconduct, regardless of whether the specific misconduct in Ananias preceded their individual cases. Hallinan, 491 Mass. at 745-748, 755. However, the SJC required that defendants seeking to vacate their convictions demonstrate a reasonable probability, based on the totality of the circumstances, that they would not have entered a plea had they known of OAT’s misconduct. Id. at 748-750. The SJC recognized that, while a breath test result is important evidence in any OUI prosecution, it often is not the only evidence by which the Commonwealth can prove its case and may not be the determinative factor in a defendant’s decision to plead or proceed to trial. Id. Should a retrial be held, the breath test results will be excluded. Id.

Implications

The most obvious implication of Hallinan is that tens of thousands of defendants will now be entitled to move for a new trial without having to establish a nexus to OAT’s misconduct in their individual cases, and many others whose motions for a new trial had previously been denied will now have grounds to renew those motions. Courts will need to determine, on a case-by-case basis, the degree to which the exclusion of the breath test would have impacted a defendant’s decision whether to proceed to trial. Defense attorneys and prosecutors will also need to consider the strength of the underlying case in deciding how to handle such motions, and whether a retrial is feasible.

Hallinan is silent as to cases involving the Alcotest 7110, but the Court’s holding makes clear that OAT’s misconduct was longstanding and dated back at least to 2011. Although further litigation will be necessary to determine if more cases should be included, it seems unlikely that the culture of dysfunction at OAT only existed from 2011 onwards.

Finally, although Hallinan notes that the joint stipulation of the parties in Ananias excluded from its ambit certain categories of serious offenses, including motor vehicle homicides, the SJC did not specifically discuss the application of its holding to cases involving those charges.

There are likely to be numerous other issues to litigate, but if one thing is clear, it is that Hallinan will not be the final word in the breath test litigation.

Casey Silvia is the Chief Staff Attorney at the Massachusetts Appeals Court and a member of the BBA’s Criminal Law Section. She previously served as Senior Appellate Counsel and Captain of the Search Warrant Team at the Middlesex District Attorney’s Office and was one of the lead attorneys for the Commonwealth on the breath test litigation.