Report Slams Massachusetts Agency for Holding Back OUI Data

The state police agency that certifies the reliability of breath tests administered to suspected drunken drivers routinely failed to provide information that could be helpful to defense attorneys, according to investigators from the state's Executive Office of Public Safety.

The report, obtained by The Associated Press, could have ramifications for several hundred people charged with operating under the influence, and perhaps thousands of others although officials said they could not immediately pinpoint the exact number of cases or how they might be impacted.

The 126-page report concludes that the Office of Alcohol Testing, which is overseen by the Massachusetts State Police, "made serious errors in judgment" in responding to requests for documentation sought by defense attorneys on behalf of clients - a process known in legal parlance as "discovery."

Those mistakes, the report said, "were enabled by a longstanding and insular institutional culture that was reflexively guarded, which frequently failed to seek out or take advantage of available legal resources, and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions."

Melissa O'Meara, who held the position of technical leader at the Office of Alcohol Testing, was terminated Monday, according to a spokesman for Daniel Bennett, the state Secretary of Public Safety.

In a separate letter sent to Col. Richard McKeon, who heads the state police, Bennett said he was directing Curtis Woods, the state's undersecretary for Forensic Science and Technology, to assume immediate oversight of the Office of Alcohol Testing until new policies were in place. Bennett also wrote that he would hire a retired judge to guide the office on handling future discovery requests.

Massachusetts Gov. Charlie Baker weighed in on the report Tuesday.

"The good news is I think it's a solid report. Very solid investigation," Baker said. "The remedy could be as broad as invalidating thousands of driving under the influence cases in Massachusetts."

David Procopio, a spokesman for the state police, said the report was being reviewed and that McKeon planned to implement procedural changes recommended by Bennett.

The investigation began after defense lawyers complained the office was withholding the documents, which included worksheets related to the calibration and maintenance of the breath testing machines used by police departments.

"While by and large, the breathalyzers worked and there were a number of instances in which they didn’t and that information wasn’t provided and it should have been," said Baker.

Attorneys representing some 750 defendants originally questioned the reliability of the Draeger 9510 Alcotest machines, introduced in Massachusetts in 2011.

Joseph Bernard, a Springfield attorney, later filed a motion claiming that exculpatory materials - meaning evidence that could be favorable to a defendant - had been intentionally withheld.

Bernard praised the report and said it could be a catalyst for reopening the cases of not only defendants he represents, but tens of thousands of others.

"This impacts every single breath test that was ever conducted on that machine," said Bernard. "This is a colossal issue."

State officials stressed that the report does not suggest the breath tests administered to motorists suspected of drunken driving produced invalid results, or that the devices themselves were faulty.

"The investigation revealed no indication that there was any effort to send instruments into the field that had not been properly certified," said Felix Browne, a spokesman for Bennett, in an email.

Officials sought to downplay any comparison with the case of Annie Dookhan, a former state drug lab chemist who was convicted of falsifying drug tests and tampering with evidence, resulting in the dismissal of thousands of criminal cases.

The Office of Alcohol Testing is responsible for certifying that all of the breath testing equipment used by police departments in Massachusetts - some 400 devices in all - are properly maintained and calibrated.

According to the report, the office routinely responded to discovery requests by providing basic information to prosecutors and defense attorneys, while withholding worksheets or other documentation that in some instances pointed to a device failing to properly calibrate at some point during the certification process. Records that could indicate how many times a particular device had been sent to the manufacturer for repairs were also not routinely provided.

The responses were dictated by what the report said was an unwritten policy apparently designed to "minimize disclosure."

O'Meara could not be reached for comment and a person who answered the phone at the office referred questions to state police.

Copyright AP - Associated Press
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