Breathalyzer Cases

POTENTIAL RELIEF IN MASSACHUSETTS BREATHALYZER CASES

JUNE 2011-APRIL 17, 2019

IF YOU WERE CONVICTED IN MASSACHUSETTS FOR OPERATING UNDER THE INFLUENCE OF ALCOHOL (OUI) IN A CASE WHERE THERE WAS A BREATH TEST DONE ON A BREATHALYZER MACHINE THAT WAS CERTIFIED BETWEEN JUNE 2011 AND APRIL 17, 2019, YOU MAY BE ABLE TO GET A NEW TRIAL OR VACATE (UNDO) YOUR PLEA.

CHALLENGING YOUR CONVICTION:

You have the right to challenge your OUI conviction if your breath test was done on a Draeger 9510 breathalyzer machine that was calibrated and certified between June of 2011 and April 17, 2019.

In deciding whether it makes sense to challenge the conviction, it will be important to consider if there was other evidence of driving under the influence of alcohol that the government could use against you even if there were no breath test results (accident, driving violations, open containers, failing field sobriety test, etc.)

IF YOU SUCCEED IN UNDOING YOUR CONVICTION AND RECEIVE A NEW TRIAL:

As a result of a series of court decisions and agreements, breath test results from the Draeger 9510 breathalyzer machines that were produced by a device calibrated and certified between June 2011 and April 17, 2019 are deemed presumptively excluded from a re-trial. For most OUI cases, the District Attorney’s Offices have agreed not to attempt to use as evidence the breath test results from this period.

However, in cases alleging motor vehicle homicide by operation under the influence, in violation of G.L. c. 90, §24G; operating under the influence causing serious bodily injury in violation of G.L. c. 90, §24L and operating under the influence of liquor as a 5th or greater offense, in violation of G.L. c. 90, §24(1)(a)(1) a prosecutor may seek to establish the reliability of the Draeger 9510 breath tests from the June 2011 to April 17, 2019 time frame and move to admit those results at trial.

LEGAL ADVICE:

[Attorneys please note: Attorney inquiries should be sent to BTattorney@publiccounsel.net]

You may want to consult with a lawyer to determine whether it makes sense for you to try to get a new trial or undo your plea.

If you hired a lawyer privately to represent you in your OUI case, please contact that lawyer.

If you cannot afford a lawyer and qualify for appointed counsel, a lawyer will be assigned to represent you at no charge.

If you were appointed a lawyer by the Court in your OUI case, please complete and submit the form below or leave the same information on our confidential recorded intake line at 617-910-5856. Please note you may only leave a message; you will NOT be able to speak with anyone.  Please be prepared to provide the following information.

  1. Defendant Name (and contact person’s name if different)
  2. Defendant Date of Birth
  3. Defendant/Caller’s Phone Number
  4. Defendant/Caller’s Mailing Address
  5. Defendant/Caller’s Email Address
  6. Courthouse (where the case occurred)

If you currently qualify for appointed counsel, then a lawyer will be assigned to contact and consult with you.

Due to the large number of anticipated inquiries, a lawyer may not contact you for a number of days or weeks. We appreciate your patience.

If your income is currently too high to qualify for an appointed lawyer, you may wish to hire a lawyer.

You may be able to find a lawyer by contacting the Massachusetts Bar Association, the Boston Bar Association, or other bar association lawyer referral services.

*******************************

Important Notice from the District Court Regarding the Hearings for Motions to Vacate Convictions Due to the Use of the Alcotest 9510 Breathalyzer Machine Between June 2011 and April 18, 2019.

At present, the District Court is operating under District Court Standing Order 12-20, which, due to the safety risks posed by COVID-19, limits the matters that Courts must hear. Motions for new trials or to vacate pleas or admissions are not among the limited matters that courts must hear at present. Thus, while Standing Order 12-20 remains in effect, Courts will accept such motions for filing but are not required to schedule the matter for a hearing until court operations return to their normal course and Courts have the ability and resources to conduct such hearings.

*******************************

It has come to our attention that some notices were sent to incorrect addresses and, unfortunately, to defendants who are now deceased.  Please accept our apology for these errors. The Commonwealth tried in earnest to create a comprehensive and accurate list of all those people who had cases affected by the breathalyzer.  We appreciate knowing about incorrect addresses so we can attempt to notify all defendants. Please do let us know if you received the letter in error by leaving a message on our message intake line at (617) 910-5856.

*******************************