Earlier in April, the Massachusetts top court ruling permitted approximately 27,000 individuals to appeal for new trials if criminal cases against them involved the use of a specific breathalyzer device. The court ruling cited “extensive misconduct” at the Massachusetts State Police Office of Alcohol Testing (OAT), in their use of the Alcotest 9510 breathalyzer.
Specifically, the Supreme Judicial Court ruling applies to individuals who received breath tests with the Alcotest 9510 between June 1, 2011, and April 18, 2019, the Supreme Judicial Court said. The ruling didn’t go as far as reversing all roughly 27,000 guilty pleas and convictions, but it’s another mark on the record of the state’s crime lab, where the Office of Alcohol Testing, or OAT, is based.
“The extensive nature of OAT’s misconduct, and the inability of the defendants in the consolidated cases challenging the reliability of the Alcotest 9510 device … have resulted in the violation of the right to due process for approximately 27,000 defendants,” stated Justice Frank Gaziano in the ruling.
Subsequently, OAT began the review process of the impact of the court decision. “The Office of Alcohol Testing in recent years has implemented significant operational improvements to ensure that breathalyzer certification, case management, discovery processes and employee training are in accordance with all applicable laws and established forensic best practices. It is important to note that the OAT operating procedures described in yesterday’s decision predate those numerous and substantial reforms,” said OAT Dave Procopio said in a released statement.
In 2013, Lindsay Hallinan pleaded guilty to impaired driving after taking an Alcotest 9510 test which determined a blood alcohol level of 0.23%. According to the court, she pleaded guilty since her lawyer told her the case couldn’t be won.
Later, Hallinan rescinded her guilty plea after the tests were found to be unreliable and allegations that the OAT had a history of misconduct were uncovered in a state report. “Defendants who were accused of crime through breath tests didn’t have access to information they could have used to challenge the findings,” wrote Justice Gaziano in the ruling.
“The broad scope and nature of these violations of court orders undermined the criminal justice system in the Commonwealth, compromised thousands of prosecutions for OUI offences, and potentially resulted in inaccurate convictions,” reads the ruling. “The conclusion that OAT’s behaviour was egregiously impermissible is ‘inescapable.'”
Just WOW! Is this the same manufacturer as the current Alcovisor Mercury model of Breathalyzer? One has to wonder what method of Quality Assurance specific to training, ongoing scrutiny of the equipment functioning, and actual testing was in place over the 8 years to allow for the 27,000 prosecutions. And what were Hallinan’s behaviours and cognitive status when tested – were they consistent with known signs of a BAC reading of 0.23% BAC? She pled guilty based upon her lawyer’s recommendation which could have been influenced by a lack of their awareness or investigation of simple BAC parameters and associated observation of behaviours of the person being tested and tried.
The OAT operating procedures, as reported by OAT Dave Procopiothe, “predated the numerous and substantial reforms” to more current processes. I would hope there has not been any cover-up activity that initiated the changes without public reporting of misdeeds. There are numerous levels of substandard actions and outcomes, and I believe it is important to start by asking why changes were initiated. It was stated the OAT was subject to allegations of misconduct. Was there a trend in prosecutions that piqued the interest of those in the OAT, or what was the basis for changes to BAC testing, etc. processes? At the very least, the investigative findings from the specific 8-year period that pinpointed a deficient model of equipment, should be shared publicly and presented with a specific causal analysis, not influenced by political posturing or departmental coverup.
The volume of cases that can now go forward on appeal with a view to expunge criminal recording of events, blows my mind. I would like to review the criteria to determine who, of the 27K individuals, has the right to appeal their conviction. I am sure those affected are asking the same question. The effects this would have on the lives of those convicted, and the limitations imposed on future opportunities, should be considered genuinely criminal.
Yes, it’s a pretty crazy situation indeed. To answer your question no, Alcotest devices are from Drager (a German company) and Alcovisor’s are produced in Hong Kong; two different manufacturers and companies.