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Massachusetts Breathalyzer Malfunctions, Evidence Withheld

The Massachusetts Executive Office of Public Safety and Security released a bombshell 126-page report on October 16, 2017 that found a practice of intentionally withholding evidence from defense attorneys by the state’s Office of Alcohol Testing (“OAT”). Melissa O’Meara, technical leader of the office, was fired in the wake of the damning report.

The investigation was launched in August 2017 after defense lawyers alleged that OAT was not turning over exculpatory evidence related to the accuracy of Breathalyzer machines. The attorneys, who represent 750 DUI defendants in a civil suit, were provided with 1,972 worksheets documenting properly working machines and 11 failures. But the report discovered that OAT had withheld another 419 worksheets documenting improperly calibrated machines.

The report further confirmed what the lawyers suspected: The damning documents were intentionally withheld pursuant to an “unwritten policy not to turn these documents over to any requester.”

“We conclude that OAT leadership made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded … and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions,” the report stated.

Joseph Bernard, lead counsel in the case brought by the DUI lawyers, told The Boston Globe that the report would have significant consequences. “This is going to impact every single Breathalyzer test case,” said Bernard. “Every single breath test from 2011 to the present will be impacted by this.”

The state’s report concluded that part of the problem at OAT was that the office handled its own requests for discovery with no input from attorneys. O’Meara indicated that “she had received no formal training in how to respond to discovery requests.” Further, the policy “appeared to have been designed to minimize disclosures.”

Thomas Workman, one of the DUI lawyers and the forensic scientist who discovered the missing exculpatory evidence, told the Globe that OAT’s failures were not the result of incompetence. “This is pretty fundamental stuff and it just wasn’t being done,” said Workman.

A conspiracy by state officials to withhold evidence from defendants is extremely troubling, but sadly, such malfeasance would not be a first in Massachusetts. Over 21,000 cases were dismissed in 2016 due to the actions of former state chemist Annie Dookhan, who was convicted of tampering with evidence and fabricating test results in drug cases.

In Workman’s opinion, the report is just “another chapter in the Dookhan legacy.” “I’m surprised that they haven’t put crime-scene tape around the Office of Alcohol Testing,” said Workman. 


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