If you follow our blogs or the local news, you may have read about an issue involving the breathalyzers used in Massachusetts for the detection of alcohol. The Draeger Alcotest 9510 is being challenged by defense attorneys, alleging that the results may be inaccurate and that though the issues were known by the Office of Alcohol Testing, they were not disclosed to defense counsel (note that the Commonwealth also claims that they were not notified of the issues).   The litigation began in August 2017, but recently, defense attorneys have come to a potential agreement which would permit those convicted of OUI the opportunity to file for a new trial. While there is no plan for outright dismissal of any cases, certainly, this is good news for those convicted during the affected time period because those convicted of OUI may get a new trial.

Following the original flaw with the equipment, it was determined that the problem can date back as far as 2011 and up to 2017.  This meant that literally thousands of arrests, convictions and continuances without a finding are now in question.   As a result of the challenges, many district attorneys promptly suspended using the results of any such testing as evidence for convictions pending the outcome of the litigation.  There will be many cases subject to re-trial – in fact, it is suspected that this case will exceed the number of those affected by the Annie Dookhan drug lab scandal.

OUI: What Are Your Chances?

If the proposed agreement is approved, you may be entitled to a new trial.  If you were convicted, or admitted to sufficient facts for, operating under the influence of alcohol (OUI), you can now file a motion for new trial and seek for preclusion of thebreath test evidence (except under certain circumstances.”  The Commonwealth may still present other evidence such as observations, video, field sobriety tests, etc.  However, Prosecutors can still seek to use breathalyzer evidence at any retrial involving motor vehicle homicide by driving under the influence, operating under the influence causing serious bodily injury, and operating under the influence, fifth or subsequent offense according to the terms of the agreement.

If you were convicted, or pled to sufficient facts, due to the breathalyzer result, in whole or in part, a new trial might yield an entirely different outcome for your case.  It is important to remember that the BT result isn’t the only evidence in an OUI trial.  An officer may still testify to his observations of you and your behavior during the encounter and specifically, during the field sobriety tests (as he would during an OUI trial that contains a BT result).  Cases can be proven by that evidence alone.  Therefore, it is best to consult with an attorney about your case to determine if your interests are best served by filing a motion for new trial.

How To Proceed?

If you were arrested and convicted on an OUI between 2011 and August of 2017, contact our office.  We will get some information from you up front to let you know if you should retain us to help you.  You can complete a confidential form with more information online right here: