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25 Investigates: Defense Lawyer Wants Indefinite Suspension of Breath Tests
The lawyer leading the fight against the Massachusetts Office of Alcohol Testing wants the suspension of breath test evidence in statewide prosecutions to be indefinite. Springfield Based Attorney Joseph Bernard filed a new motion Friday accusing the lab responsible for maintaining breathalyzers in Massachusetts of withholding important information from all parties involved in the six-year legal battle. It’s the latest filing in ongoing litigation challenging the scientific reliability of breath test results in the Commonwealth. Attorney Bernard told 25 Investigates reporter Ted Daniel that he stumbled upon documents that show the Office of Alcohol testing implemented a new software program in Breathalyzer machines police use to determine if drivers are under the influence of alcohol. Bernard said the new software program impacts the source code and calibration of the devices and may impact breath test results. Read the full article here.
State-Run Alcohol Lab Blows Another Disclosure, Says Attorney in Class Action Lawsuit Over Breath Tests
Breath tests commonly used in drunken driving arrests have developed a storied history in Massachusetts, and the credibility of the state-run Office of Alcohol Testing has taken a bit of a beating over several years of litigation. And, according to local defense lawyer, Joseph D. Bernard, whose niche is OUI cases, the lab has bungled another key disclosure as a court-ordered moratorium on introducing the test results in criminal prosecutions is about to expire. According to Bernard, the lab is at it again. The core issues is a bit wonky. The “source code,” or computer-speak that controls the measuring of alcohol levels gleaned from the breath, has been hotly contested. In the midst of litigation, Bernard said, the lab changed its vendor and the source code — and failed to disclose it to litigants, the attorneys or the judge. Instead, Bernard said, the lab quietly posted information on its relatively obscure website. Read the full article here.
Massachusetts’ Use of Breath Tests are Suspended, Again: ‘Here we go again’
A state judge has again suspended the use of breath tests from OUI prosecutions after defendants argued that the police Breathalyzer was not reliable. Salem Judge Robert Brennan this week ordered the statewide exclusion of breath test results, pending a hearing in the next two months. “Here we go again,” Bernard said in a statement, later adding, “I’m really not surprised with all the problems we’ve seen in the past. This machine has been riddled with issues and the taxpayers, the citizens along with the criminal justice system all deserve better. It is time to move forward and put this machine in our rearview mirror.” Read the full article here.
Courts Again Suspends Use of Breathalyzers in Drunken Driving Cases
Prosecutors will once again be banned from using breathalyzer tests to prove drunken driving cases after a district court judge ruled there are still serious flaws with the machines used to measure blood alcohol levels and the procedures used to administer the tests. District Court Judge Robert Brennan suspended the use of the Draeger Alcotest 9510 machine, approving an emergency motion filed by Springfield lawyer Joseph D. Bernard on behalf of multiple defendants. Read the full article here.
Judge Orders Exclusion Of Breath Tests From OUI Prosecutions In Mass.
The ruling said that Breathalyzer results are among the most incriminating pieces of evidence in prosecutions involving alcohol impairment. Judge Brennan wrote that their “improper inclusion in cases unfairly impacts defendants and undermines the public confidence in the criminal justice system.” The decision came after Springfield Attorney Joseph Bernard raised concerns about software problems in the devices used for breath tests and the Office of Alcohol Testing’s (OAT) failure to disclose “potentially exculpatory evidence that could benefit defendants charged with OUI.” Read the full article here. To listen to an interview Attorney Bernard conducted with WBZ Radio, click here.
Judge Rules on Breath Test Exclusions in Massachusetts OUI Prosecutions
Judge Robert Brennan ruled this week that results still can’t be used in OUI cases in the state, meaning if someone is scheduled to go to court soon for an OUI charge and the only evidence against them is a breathalyzer result, the case will likely get thrown out. Attorney Bernard has been concerned about breath test results for years. “People are going to jail and people are losing their licenses. They really need to recognize that they have to get this right. You can’t just get close to the mark. They have to be on the mark.” Read the full articlehere.
State DAs Halt Use of Breathalyzer Results
Attorney Bernard, along with Attorney Panagiotes, has been unearthing concerns about breath testing machines for years, saying the new concerns are both from potential issues with the machines and a culture of secrecy within the Office of Alcohol Testing (OAT). Up to recently, prosecutors in several jurisdictions across the state, including on Cape Cod, are suspending the use of breathalyzer evidence following concerns about the machines and their stewardship. Read the full article here.
Notices Sent for DUI Convictions Based on Inaccurate Results
Following the years’ long use of breath test machines that were improperly calibrated and an attempt by officials to cover up the full extent of the malfeasance, notices have been sent to defendants who may be eligible to reopen their case. Attorney Bernard calls this a “huge development” for those whose lives were “turned upside down”. Read the full article here.
Thousands With OUI Convictions to be Offered New Trials Over Unreliable Breath Tests
This article chronicles the moratorium on breath tests in the Commonwealth following the discovery of improperly calibrated machines and the Office of Alcohol Testing’s deliberate withholding of information on the machines’ reliability. Attorney Bernard is quoted, giving credit to OAT for coming a long way since 2019. “…What they’ve done is accepted responsibility… they have been transparent about all of their remedial measures.” Read the full article here.
Western Massachusetts DAs Say 6,100 OUI Convictions Eligible for New Trials Because of Breath Test Problems
6,100 local residents of Berkshire, Franklin, Hampden and Hampshire counties are receiving letters informing them that they are eligible to have their conviction or plea vacated underCommonwealth v. Ananias. This decision comes years after widespread statewide mafeascence was uncovered at the Office of Alcohol Testing. Not only were the breath test machines not calibrated correctly, OAT attempted to conceal the extent of the problem. Attorney Bernard was quoted for this story, “This is a system-wide problem that wreaked havoc on the criminal justice system.” He goes on to say, “People were guilty by machine. Many lives were turned upside down.” Read the full story here.
Judge OKs Notice of ‘Ananias’ Rights to OUI Defendants
A Concord District Court judge has granted a motion to send notices informing thousands of drunken driving defendants that they may have a right to challenge their convictions as a result of a 2017 decision that recognized the presumptive unreliability of breath tests administered by police officers using Draeger Alcotest 9510 devices. This decision reflects the facts that emerged in the years’ long litigation Attorney Bernard led in Commonwealth v. Ananias. Read more here.
Hundreds in Berkshire County May Get New OUI Trials Due to Questioned Alcohol Breath Tests
27,000 notices have been sent to defendants in Massachusetts who received a breath test and were convicted of operating under the influence between June 2011 and April 2019. The Berkshire District Attorney’s Office will send around 900 letters to defendants. This stems from the breath test case that Attorney Bernard led, Commonwealth v. Ananias. Attorney Bernard’s former client, Matt Mottor, lives in Hinsdale and discusses how his case and life were both affected by the unreliable breath test. Mottor is quoted, “Getting home, you’d have to figure it out. If I had to sleep in an office, fine. You’re at the mercy of what everybody else is doing at that point. There’s no Uber around. You’re not calling for taxis around here.”
Read the article by the Berkshire Eagle and Attorney Bernard’s client’s statement here.
Notices Sent for DUI Convictions Based on Inaccurate Results
The Associated Press, MassLive, Milford Daily News, MetroWest Daily News, US News, Seattle Pi, and The Washington Times discuss the 27,000 notices sent to people across Massachusetts who might be eligible for a new trial in their drunk driving case. Attorney Bernard discusses how the notices were a “huge development” for thousands of people.
Read the original article by the Associated Press and Attorney Bernard’s statement here.
Notices Going to More Than 27,000 Convicted With Flawed Breath Test Data
The Salem News, Gloucester Daily Times, and Bennington Banner have reported that after an 11-month hold due to court closures and staffing in wake of the COVID-19 pandemic, 27,000 notices have gone out to defendants impacted by the improperly calibrated Alcotest 9510 breath test machines from 2011 to 2019. Not only were the machines improperly calibrated, but the Office of Alcohol Testing “minimized” and “tried to hide” the problems. Attorney Bernard is quoted, “It’s a huge development” and that these actions by state officials turned people’s lives “upside down.” The cost of a conviction can be housing, a job or even immigration consequences.
Read the article here.
Court Orders Over 27,000 Notices to be Sent to Drunk Driving Defendants
After years of litigation, Commonwealth v. Ananias succeeded in forcing change at the Office of Alcohol Testing (OAT). February 2, 2020 27,000 letters went out to citizens impacted by the Alcotest 9510 between June 2011 and April 2019. Defendants in this class are being notified they may have grounds to request that their plea or conviction be vacated. Exceptions to this class include cases alleging motor vehicle homicide by
operation under the influence of liquor, operating under the influence causing serious bodily injury and operating under the influence of liquor as a 5th or greater offense.
Read the story and Attorney Bernard’s statement here.
BAD BREATH: MASS STATE POLICE SCREW UP MORE OUI TESTS, CASES, LIVES
Attorney Bernard says, “Here we go again.”
News venues across the Commonwealth are taking interest not only in the Alcotest 9510 malfunctions brought to light last month, but their impacts on citizens. The malfunction occurred when reports of drivers’ breath test refusals or failures were sent to the RMV without proper authorization. This authorization is the electronic signature of the administering officer, and is applied under the pains and penalties of perjury. Without this, the findings from the test are not valid in a court of law.
This malfunction also calls into question the reliability of the device. As Attorney Bernard states, “Time and time again this particular machine has shown issues and problems providing reliable results.” Further offering that these machines are “dinosaurs” in measuring blood alcohol concentration, Attorney Bernard notes that across the country, not just in the Commonwealth, agencies are moving away from using them. To read the whole story, please follow this link.
ANOTHER FLAW EMERGES WITH BREATH TEST MACHINES
Attorney Bernard states, “Stop the Madness”.
Just one year after the Office of Alcohol Testing (OAT) gained accreditation in compliance with a court order, they have released information that over 400 citizens have been illegally impacted once more in the course of breath testing. The court order followed years of litigation that uncovered gross negligence and malfeasance at OAT over an eight year period, affecting thousands of people. The new discovery announced Wednesday indicates that since 2011, the state’s Draeger Alcotest 9510 breath testing machines have been malfunctioning and illegally transmitting reports to the RMV that have resulted in suspended licenses. These reports were sent without legally-required certifications by the administering officer, including the mandate that the officer submit information under the pains and penalties of perjury. OAT has not determined why the machine is malfunctioning, and has yet to investigate whether the malfunction affects the reliability of reported breath test results. Find the story here.
27,000 Mass. Drunken-Driving Convictions May be Tossed Out Due to Faulty Breathalyzer Machines, Lawyer Says
Massachusetts courts have ruled that the Office of Alcohol Testing (OAT) has been sufficiently overhauled and has earned accreditation from a national agency, which has paved the way for breath tests to be admissible in Massachusetts courts once again. This marks the end of one era and the start of another: Thousands of those who were convicted or plead guilty to charges due to breath test results may be eligible to seek a vacated sentence. Though this decision marks an end to the intense scrutiny the OAT was placed under due to its own misuse of equipment and mishandling of evidence, it is only the beginning for thousands convicted under previous practices, that according to Attorney Bernard, “had an enormous impact on the entire criminal justice system.” For the full story, follow this link.
Blown Away: Why the Police Rely on Faulty Breathalyzers
The news of the NYT’s investigation of faulty breathalyzers has brought a lot of attention to this issue. On November 6, 2019, Attorney Joseph Bernard along with Jessica Silver-Greenberg, business reporter for The New York Times, and Jan Semenoff, forensic criminalist and editor of Counterpoint Journal, were interviewed live on air by Joshua Johnson of NPR about this widespread problem, where it started, and why it is important to everyday Americans. Listeners, including law enforcement personnel and concerned citizens, called into the show with questions and concerns. Attorney Bernard and the other participants responded to these messages during the show touching on subjects including public safety, issues of liberty, and the difficult task of balancing the two. It is surprising to most to learn of the breadth of this issue which is affecting tens of thousands of Americans and Canadians alike. To listen to the full interview, please follow this link.
These Machines Can Put You in Jail. Don’t Trust Them.
Lawyers across the country have been working with law enforcement and members of the scientific community to investigate the science and algorithms behind breath testing and breath testing machines designed to determine blood alcohol content. The issues they have uncovered are staggering. New York Times investigative journalists including Stacy Cowley and Jessica Silver-Greenberg caught wind of these discoveries and did a feature on the NYT docu-series titled The Weekly. Attorney Bernard has represented numerous individuals who have had their lives turned upside down by these faulty and inaccurate breath test machines. Attorney Bernard was a principal resource for the NYT reporters and is featured both in the article below, and Season 1, Ep. 18 of The Weekly, Guilt by Machine. The Weekly airs each Sunday evening on FX. You can find past episodes on-demand on Hulu and FX streaming. To read more about it, please follow this link.
A Bureaucratic Nightmare Amid Drivers License Suspensions
Due to clerical errors, a rash of individuals have been receiving notices of suspension of their drivers licenses. This can lead to countless hours of uncomfortable and confusing phone calls, actual suspension of their right to drive, and lost time and wages due to their inability to get where they need to go. To read more about it, please follow this link.
Sobriety Checkpoint in Worcester County
Massachusetts State Police have announced that they plan to set up a sobriety checkpoint somewhere in Worcester County starting Saturday, October 26, into the morning of Sunday, October 27. The exact time and location of the checkpoint has not been announced. To read more about it, please follow this link.
Attorney Bernard’s Insistence on Accreditation Reap Rewards
Since the beginning of the litigation, Attorney Bernard has argued that the Office of Alcohol Testing (OAT) should obtain accreditation. The OAT was the only branch of the forensic laboratory that was not accredited. Based upon Attorney Bernard’s work, the OAT is finally accredited and breath testing can resume according to the latest ruling from Judge Brennan in Commonwealth v. Ananias. The ruling states that breath test machines calibrated on or after April 18, 2019, may be used in court. Reporting on the story, the Boston Globe quoted Attorney Bernard saying “I think this is a success for every citizen who pays tax dollars… We deserve honesty, we deserve quality results… It’s transparent.” To read the full story click here.
Belchertown Lawyer Played a Key Role in Breathalyzer Case
Following the news that the Office of Alcohol Testing (OAT) received accreditation, the Daily Hampshire Gazette reached out to speak with the lead defense counsel in Commonwealth v. Ananias, our very own Attorney Bernard! The Gazette quoted Attorney Bernard as stating “people really need to recognize, if they have an OUI from (2011 until present) and it’s impacting a job application or a bank loan, there’s a mechanism to take that off their record now, because these breath tests have been tainted.” Individuals who were charged with an OUI that involved a breath test during that time which resulted in a plea or a trial should expect to receive notices in September and October that they may be eligible to have their cases overturned and get a new trial. Click here to read the full story.
After Board Signs Off on Way Machines Calibrated, Results of Breath Tests May be Admissible Again
Attorney Joseph Bernard was featured in an article written by the Berkshire Eagle regarding the Office of Alcohol Testing (OAT) being accredited by ANSI National Accreditation Board. Attorney Bernard was quoted stating “Year after year, the OAT remained the only part of the Commonwealth’s forensic laboratory that was not accredited.” Read the full story here.
State Police Lab Takes Step Toward Providing Breath Test Evidence
The Boston Herald wrote an article following the news that the Office of Alcohol Testing (OAT) has been accredited by ANSI National Accreditation Board. Attorney Bernard was quoted saying “The great news is, it appears as if the Office of Alcohol Testing has finally got their act together and is moving in the right direction.” We are now fighting for the release of a report that the letter of accreditation is referencing and what the scope of the accreditation is. Read the full story here.
New York Times with Attorney Bernard in Palmer District Court!
On May 23, 2019, the New York Times recorded Attorney Bernard’s Oral Argument in the Palmer District Court. This hearing was a motion to withdraw a guilty plea for one of our clients who pled guilty to an OUI in Massachusetts in 2017. At the time of this offense, our client submitted to a breath test and it was used as evidence against him in court. Due to Attorney Bernard’s work in challenging the reliability of breath tests in Massachusetts in the state-wide litigation case, Commonwealth v. Ananias, breath tests were deemed inadmissible between June 2011 and the indefinite future.
Our client’s case fell between the time frame of the exclusion of breath tests and thus he has a right to retry his case. The New York Time was there to record this argument and see Attorney Bernard in action. Attorney Thomas Workman also testified during this hearing and he is one of the nation’s leading experts on breath tests. He also played a huge role as an expert witness in Ananias. Here are pictures of Attorney Bernard, Attorney Workman, Attorney Erica Bruno, and members of the New York Times.
New York Times Interviews Attorney Bernard on Behalf of Breath Test Litigation
On May 22, 2019, Attorney Bernard was interviewed by the New York Times regarding his statewide breath test litigation, Commonwealth v. Ananias. The New York Times will be accompanying Attorney Bernard tomorrow, May 23, 2019, to the Palmer District Court, to witness a motion hearing to withdraw a guilty plea for one of our client’s who was convicted of an OUI in 2017 as a result of the use of the breath test.
Recent Projects Bring New Look to Downtown Springfield
Western Mass News approached Attorney Bernard in downtown Springfield when he was on his way back from the Springfield District Court. Attorney Bernard discusses the recent projects that have been occurring in Springfield to upgrade the new businesses and atmosphere. Go Springfield! Read the full story here:
I-Team: Massachusetts Judge Bans Use of Breathalyzer Tests In Court
22 News WWLP interviewed Attorney Joseph Bernard, lead counsel of Commonwealth v. Ananias, regarding the decision Judge Brennan made to ban breathalyzers tests in Massachusetts OUI cases until further notice. The Office of Alcohol Testing must show they they are likely to be approved of accreditation until breathalyzer tests can be used again. Attorney Bernard is quoted saying, “There are 7 different goals that the judge mandated they reach. They claimed that they had already reached them in court, but the judge disagreed and said no, you have to do certain things, and until you do these certain things, you’re not going to be allowed to use breath tests in Massachusetts.” Read the full story here:
Breathalyzer Results Banned From Being Used In Massachusetts Courts
Western Mass News reported on the decision made by Judge Brennan that affects OUI cases statewide in Massachusetts. Attorney Joseph Bernard is quoted saying, “It’s huge because as we stand here right now, breath tests are not permitted to be introduced. That’s indefinite until the Office of Alcohol Testing provides proof to this judge to show that they are going to receive accreditation.” Click here to learn more.
Massachusetts Judge Bans Use of Breathalyzer Test In Court
WBUR News released an article discussing the decision made by Judge Brennan where he ruled that breath tests will continue to be excluded in OUI cases in Massachusetts until the Office of Alcohol Testing can show that they are likely to be succeed at accreditation. Attorney Bernard is quoted saying, “People go to jail, people lose their license, and the judge is essentially saying, if you’re going to be putting liberties at risk, you better be precise. You better be accurate and the only way you’re going to do that is to show accreditation.” Read more here.
State Lab Must Show Progress For Breath Tests to be Used In Certain OUI Cases
Boston Globe reported that although there are some exceptions, breathalyzer tests cannot be used as evidence in drunk driving cases in Massachusetts. Attorney Joseph Bernard is ruling this as a significant victory, he is quote saying, “What it does is it protects the citizens, the courts, and the defense attorneys who demand fair and reasonable discovery practices.” Click here to read the full article.
Massachusetts Judge Bans Use of Breathalyzer Test In Court
The Office of Alcohol Testing must undergo major reforms in order for breathalyzer tests to be used in OUI cases in Massachusetts again as ordered by Judge Brennan. Read more here.
Breathalyzer Controversy Returns to Court
WWLP interviewed Attorney Bernard regarding the latest update in Commonwealth v. Ananias. Prosecutors have agreed to exclude breath tests from evidence from 2011 to 2017 in OUI cases in Massachusetts. However, Attorney Bernard wanted to extend this time period even further due to the calibration of the breath tests. On 22 News at 5:00 p.m., Thursday, December 13, 2018, there will be a feature on television regarding this. Click here to read the full story.
Another Delay In Hearing On Use of Breath Test Results
On November 6, 2018, Salem News posted the latest update in the statewide breath test litigation case, Commonwealth v. Ananias. This article discusses why the hearing has yet again been continued. The defense, Attorney Bernard, needs to obtain and review proficiency test results for workers at the lab of the Office of Alcohol Testing. Thus, the hearing has been continued to November 26, 2018. Please utilize this article to read more information.
Judge Mulling Over When Prosecutors Can Resume Using BT Results
Salem News recently published an article discussing the latest update in the statewide breath test litigation case, Commonwealth v. Ananias. It is still not decided when breath test results can be admitted into evidence for OUI cases in Massachusetts. Click here to read the full story.
Massachusetts District Attorneys Agree to Toss Breath Test Results
MassLive recently published a news article regarding the progress in Commonwealth v. Ananias. Attorney Bernard is quoted saying “To correct the deficiencies that exist, the (Office of Alcohol Testing) must become accredited.” Click here to read the full story.
Breathalyzer Results Could Be Thrown Out In More Than 35,000 Massachusetts Cases
WBUR News published an article regarding the proposed agreement between defense attorneys, including Attorney Bernard, and district attorneys in Commonwealth v. Ananias. Although this agreement still needs to be signed off by Judge Brennan, you can read the full story here.
Delays May Soon Be Over in Scheduling Breath Test Cases
MassGov released an update regarding the breath test cases in Massachusetts. Now that both parties in Commonwealth v. Ananias has come to an agreement, the usage of breath test results in court may begin again soon. Read here for more.
Proposed Settlement Filed in Alcotest Case
Massachusetts Lawyers Weekly discusses the progress Attorney Joseph Bernard, among other lawyers, have done in Commonwealth v. Ananias. This article discusses the proposed settlement agreement that Attorney Bernard filed in the Concord District Court on August 14, 2018. Read here for the full story through Massachusetts Lawyers Weekly.
Tainted Breathalyzer Results Could Force New Trials
The Salem News discusses the possibility of new trials for breath test cases due to Commonwealth v. Ananias. Attorney Bernard is quoted by saying, “It was not the district attorneys who were withholding the material. They had nothing to do with this and when they found out, they rose up.” Click here for further information.
Thousands Convicted of OUI Could Seek New Trials Under Tentative Deal on Breathalyzers
The Boston Globe released an update regarding the agreements between the defense attorneys and the district attorneys on the usage of breath test results in the courtroom. Due to the work done by Attorney Bernard in Commonwealth v. Ananias, there could now be a possibility of thousands of new trials for convicted OUIs in Massachusetts. Attorney Bernard claims that much work has been done, but there is still much more. Click here for more.
NYSP Breathalyzer Model at Center of 20,000 Case Controversies in Massachusetts
A New York reporter recently interviewed Attorney Bernard regarding the breathalyzer controversy in Massachusetts. New York State Police are currently still using the same breathalyzer that has been excluded from evidence here in Massachusetts. Click here to watch the interview and read more about this.
Researchers Say a Breathalyzer has Flaws, Casting Doubt on Countless Convictions
Attorney Bernard, among other researchers, was recently mentioned in an article regarding breathalyzers. He discusses the ruling of breath test results being “presumptively unreliable” for two years prior to September 2014. Click here to read more on this.
