If you are one of 27,000 Massachusetts defendants convicted of Operating Under the Influence (OUI) of alcohol between 2011 and 2019, you might have a right to a retrial. A recent decision by the Massachusetts Supreme Judicial Court has ruled unconstitutional any OUI convictions during those years that used a failed breath test as evidence, based on egregious government misconduct by the Office of Alcohol Testing for failures to properly calibrate breathalyzer machines.
The case involved defendant Lindsay Hallinan, who was arrested by the Massachusetts State Police at a sobriety checkpoint in Beverly in 2013. Troopers stated that her speech was slurred, her eyes were bloodshot, and that they detected an odor of an alcoholic beverage inside her car. Hallinan told troopers that she was at a local sports bar where she had three drinks. She elected to take a breath test that recorded 0.23 percent blood alcohol content, which is almost three times the legal limit. Hallinan entered a plea based on advice of counsel that her case was unwinnable due to the breath test reading. Her license was suspended for two years.
You are Not Obligated to Take a Breath Test
At the heart of the Supreme Judicial Court’s recent ruling, which involved Hallinan’s appeal of her 2013 conviction, is the misuse of uncertified breathalyzers. A little background:
When the police suspect a driver is operating under the influence of alcohol, they often ask the driver to take a breath test at the scene of the traffic stop using a portable breathalyzer. Police use this preliminary test to determine whether or not to arrest the driver. However, the driver is under no obligation to submit to that test, and refusal to do so cannot be used as evidence in court. Even if the driver takes the portable breath test and fails, the result cannot be used as evidence in court.
You also have the right to refuse to take a breath test at the police station after you have been arrested. If you do refuse, however, then your license is suspended for 180 days. The only breathalyzer result that can be used as evidence at trial is the one conducted at the police station. But in order for a breath test result to be scientifically reliable and valid, it must be obtained using a breathalyzer that has been calibrated and certified by the state’s Office of Alcohol Testing. This process requires a chemist to check whether the machine properly measures a sample with a known alcohol concentration. The breathalyzer is certified if the calibration and any necessary adjustments demonstrate that the machine takes accurate measurements.
In Massachusetts, every breathalyzer machine must be calibrated and certified at least once a year, and the calibration itself must be performed according to a standardized, written protocol. The calibration process is conducted by the Office of Alcohol Testing and the results recorded in a certification report. If a breathalyzer has not been calibrated properly, then defendants have a strong basis to exclude evidence of the breath test result.
Evidence of State Police Misconduct Using Uncertified Breathalyzers Led to Class Action Suit
In the years following Hallinan’s conviction, evidence uncovered in other cases suggested that the Massachusetts State Police engaged in misconduct by failing to disclose when certain breathalyzer machines failed certification. In 2015 defense lawyers filed consolidated appeals on behalf of a class of certain defendants convicted in cases where questionable breathalyzer results were used (Commonwealth v Ananias).
Public records requests revealed that hundreds of failed calibration tests were not disclosed to defendants before they pleaded guilty or were convicted after a trial. The head of the Office of Alcohol Testing was fired. The use of breathalyzer results in prosecutions was suspended across the Commonwealth. The Office of Alcohol Testing was required to apply for national accreditation and establish an online portal to provide everyone access to breathalyzer related records.
Hallinan’s Appeal of Her 2013 Conviction Led to Right to Due Process Ruling
In 2021 Hallinan filed a motion to withdraw her guilty plea as a result of the evidence uncovered in the Ananias litigation. Her motion was denied because she was unable to show a connection between the allegations of governmental misconduct in Ananias and her own case. She was not a member of the consolidated class of defendants challenging the reliability of the breathalyzer, nor did she request any breathalyzer records before her guilty plea.
Hallinan appealed, and the Supreme Judicial Court considered her case. Due to the extensive nature of the Office of Alcohol Testing’s misconduct, the number of defendants who pleaded guilty or who were convicted after trial, and the evidence against them that included misleading breath test results from June 1, 2011 through April 18, 2019, the Court ruled that Hallinan and all defendants in cases with failed breath tests were denied their constitutional right to due process. Those defendants, about 27,0000 people, are entitled to a conclusive presumption of egregious government misconduct. That means they may file a motion to withdraw their guilty pleas and motions for new trials without having to prove that the misconduct applied to their individual case.
Final Determination of OUI Cases Depends on Other Evidence of Impairment
The ruling in the Hallinan case does not mean that all 27,000 defendants will successfully withdraw their guilty plea or receive a new trial. Once the request is made, a judge will examine whether there was overwhelming evidence of impairment even without the breath test result. The government can pursue an OUI prosecution with a variety of other evidence, including field sobriety tests, police observations, blood tests, and the defendant’s statements.
For individuals convicted in cases that lacked overwhelming evidence besides the breath test result, significant damage has already been done. OUI convictions result in license suspensions, higher car insurance premiums, and negative effects on employment opportunities. If this is your situation, it’s still worthwhile to remove an OUI conviction from your record, given the negative impact on so many other aspects of your life. Note, too, that defendants charged with a second or third offense of OUI face much more severe penalties. We stand ready at Mountain Dearborn to help you in any cases involving a charge of OUI and to determine if your prior conviction can be challenged due to government misconduct.
Image: Scott Rodgerson