IN A CASE that has echoes of the notorious drug lab scandals, the state’s highest court will consider whether to make up to 27,000 defendants in drunk driving cases eligible for new trials because of problems with the state’s use of breathalyzer tests.
The Supreme Judicial Court is scheduled to hear arguments December 7 in Commonwealth v. Lindsay Hallinan. The case is a capstone to seven years of litigation over the validity of breathalyzer tests and hinges on whether the misconduct of a state agency that hid documents related to the alcohol tests was egregious enough that it merits the reopening of thousands of guilty pleas and convictions.
Attorneys involved in the case are drawing parallels with the misconduct of state drug lab chemists Annie Dookhan and Sonja Farak. Dookhan’s falsification of drug test results and Farak’s theft of drug samples led to the overturning of thousands of drug-related convictions.
“Everybody’s opinion of our criminal justice system is really rocked, and everybody is questioning as to whether they can trust the results of labs,” said Joseph Bernard, a Springfield lawyer who has led the breathalyzer litigation. Bernard said the SJC should “do the right thing” by giving the 27,000 drunk driving defendants “another shot at a trial to restore confidence in the system.”
The Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers compared the breathalyzer case and the drug lab scandals in a brief they filed jointly with the SJC. “Once again, serious doubts about the reliability of forensic evidence affecting thousands of convictions have come to light, after years of the government failing to disclose them,” attorneys for the defense lawyer groups wrote. “And once again, this Court is being asked to remedy that misconduct on a global scale using its superintendence powers, because the problem is far too great for meaningful relief to be meted out case-by-case.”
Defense lawyers argue that just like in the drug lab case, the breathalyzer failures put into question the entire credibility of the court system. “As recent history has shown, undisclosed errors, testing failures, or misconduct by the agencies creating forensic evidence can deeply affect the reliability and perceived credibility of the entire justice system,” wrote the attorneys from public counsel services, the state agency that oversees legal representation for indigent clients.
The case stems from litigation over whether a particular breathalyzer test used by police in Massachusetts, the Alcotest 9510, was accurate. In February 2017, Salem District Court Judge Robert Brennan ruled that the test itself is accurate, but the methods used by the state’s Office of Alcohol Testing to certify the instruments between 2011 and 2014 did not produce scientifically reliable results. The ruling meant that tests conducted during those years could only be used in court if prosecutors proved to a judge on a case-by-case basis that a particular test was calibrated correctly.
During ongoing litigation in August 2017, it was discovered that the Office of Alcohol Testing, a branch of the State Police crime lab, had intentionally withheld from prosecutors 432 worksheets showing failed calibration tests, despite a court order that they produce the records.
The Executive Office of Public Safety and Security commissioned a review, which found that the Office of Alcohol Testing made “serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a long-standing 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 obligation borne by those whose work facilitates legal prosecutions.” It found that the office had withheld exculpatory evidence, disobeyed discovery orders, and concealed evidence that its testing process was flawed.
In 2019, Brennan accepted an agreement between the state and defense attorneys stating that prosecutors would not introduce Alcotest results as evidence from the time the state started using Alcotest in 2011 until such time as the Office of Alcohol Testing applies for accreditation, creates protocols for turning over materials during discovery, and trains its employees. There was a narrow exception for the most serious offenses, like drunk driving-related motor vehicle homicide.
A notice was sent out to around 27,000 people, which said that all breath test results administered in Massachusetts between June 2011 and April 18, 2019, have been excluded from use in criminal prosecutions. “This may provide an opportunity for you to challenge the disposition in your case,” the notice said.
The current SJC case addresses the question of whether someone who pleaded guilty during that time period can withdraw that plea due to the breathalyzer controversy. It also opens the door to the possibility of a blanket dismissal of cases, as occurred in the drug lab scandals, as opposed to the current situation where someone who was convicted of drunk driving must petition a judge to reopen their case in light of the new evidence.
Attorneys with the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers argue that there should be a mass dismissal of convictions. “Given the widespread, systemic nature of [the Office of Alcohol Testing’s] misconduct, this Court should vacate and dismiss the convictions and admissions of all defendants affected by the Ananias [breathalyzer] decision, rather than leave relief to case-by-case adjudication,” the lawyers write in their brief. They suggest that if someone pleaded guilty, the court could determine whether there was a “reasonable probability” that they would not have pleaded without the breathalyzer evidence.
Lindsay Hallinan, the named defendant in the case before the Supreme Judicial Court, admitted in 2013 that there were sufficient facts to convict her of a second offense of operating a car under the influence of liquor. Her case was continued without a finding for two years with conditions, fines, and a license suspension. Hallinan sought to withdraw her admission once evidence emerged of the Office of Alcohol Testing’s misconduct.
Bernard, who is representing Hallinan, is asking the SJC to rule that any defendant in a case where a breath test was used should be eligible to rescind their guilty plea in light of the “egregious misconduct” by the Office of Alcohol Testing.
Bernard writes in a court brief that this case is similar to the Dookhan scandal, where the Supreme Judicial Court ordered the state’s district attorneys to review all cases prosecuted within the time frames when there was lab misconduct and dismiss any charges they would not re-prosecute. Any remaining cases would be addressed case-by-case. The DAs dismissed more than 21,000 cases.
Bernard wrote that here, there is again systemic wrongdoing since the Office of Alcohol Testing failed to adhere to scientific standards, then hid evidence of the failures of its breath test machines. He said there is no way to determine whether breath tests were reliable in any particular case because of OAT’s covering up failed machine calibrations. “Where twenty percent of machines failed calibration for reasons OAT has shown no interest in identifying, OAT’s own records that a given machine never failed its own flawed calibration process provide little confidence that a given test result was, in fact, reliable,” Bernard wrote in the court brief.
Bernard argued that the 27,000 cases where breathalyzer evidence was used are now tainted by government misconduct, and anyone who pleaded guilty should be allowed to withdraw that plea. He suggested that many of those who pleaded guilty did so “not because they were guilty, but because a machine said they were guilty.”
“What we’re saying here is that because of the egregious government misconduct on all of these cases from 2011 to 2019, you need to give these defendants another bite at the apple,” Bernard said in an interview. “It’s only fair because of the deception and…the utter dysfunction of the OAT.”
The Committee for Public Counsel Services says it lacks the resources to provide a lawyer for every affected defendant, should each case be retried individually. “Any case-by-case or piecemeal adjudication of OAT’s wrongdoing would not only leave many affected defendants’ violations un-remedied, but also do so at a staggering cost,” CPCS attorneys wrote in their brief, asking for a mass dismissal.
On the other side, Essex District Attorney Jonathan Blodgett, in a brief on behalf of the state, argues that defendants like Hallinan should have to prove in court that the problems at the Office of Alcohol Testing made a difference in their individual case in order to withdraw a guilty plea. In Hallinan’s case, he says, there was ample evidence of impairment based on her appearance and behavior.
Blodgett argues that the court should not create a presumption of government misconduct in every case, but only where a defendant can show that there was misconduct in their case. Blodgett rejects the comparison to the drug lab cases, arguing that Dookhan and Farak’s cases involved fabrication or manipulation of evidence. Here, there was no fabrication of evidence, and at most, the withheld information could have been used to cross-examine witnesses to question the reliability of breath test results.
Carrie Kimball, a spokesperson for the Essex district attorney’s office, said the office could not comment further on a pending case.