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Breathalyzer Test Results Are Again Admissible

Posted by Matthew Gilman | Sep 30, 2021 | 0 Comments

For the past two years Prosecutors across the Commonwealth have been unable to introduce the results of breath tests administered on the Alcotest 9510 machine. On November 5, 2018 pursuant to a settlement agreement, breath tests were deemed to be presumptively excluded from use in prosecutions from June, 2011 to a date to be determined by the Court. That date has now been set and determined. The court required the Massachusetts Office of Alcohol Testing to satisfy seven (7) specific items before the any breath tests results would be reconsidered. The seven items set by the court were:

1. OAT filed any application for accreditation with ANAB that is demonstratively substantially likely to succeed;

2. OAT's accreditation application has been uploaded onto the eDiscovery portal;

3. The ANAB Accreditation Requirements manual is available for viewing on eDiscovery portal;

4. that OAT promulgate discovery protocols consistent with those employed by the State Police Case Management Unit;

5. that OAT's discovery protocol has been unloaded to the eDiscovery portal;

6. All OAT employees received training on the meaning of exculpatory information and the obligations relating to it; and

7. All written materials used to train OAT employees on discovery and exculpatory evidence have been uploaded to the eDiscovery portal.

The court announced on July 29, 2019 that the Commonwealth had fully complied with the Court's orders.

As a result of satisfying the seven conditions set by the Court, Judge Robert Brennan announced that the Commonwealth could return to using Alcotest 9510 machine results that were both calibrated and certified on or after April 18, 2019. 

At this time most Alcotest 9510 machines across the state have not yet been calibrated and certified. Therefore, test results on devices that were not calibrated and certified on or after April 18, 2019 are still presumptively excluded from prosecutions. If however, you were arrested and charged with OUI and provided two breath test samples on a device that was calibrated and certified after April 18, 2019, that evidence is now likely to be admissible. There many be many other grounds for the evidence to be excluded but it is no longer presumptively excluded.

If you have been charged with OUI it is important that you understand your rights and how to defend against these charges. Having an Attorney who understands not just the criminal consequences but the collateral license suspension consequences will put you in the best position to make important decisions. Contact Attorney Gilman today. He can represent people who face drunk driving charges in Boston, Revere, Cambridge, Newton, Somerville, Waltham, Framingham, Lowell, Brookline, Haverhill, Lawrence, Salem, Worcester, Leominster, Fitchburg, Brockton, and Plymouth, as well as other areas of Suffolk, Middlesex, Norfolk, Essex, Worcester, and Plymouth Counties. For a free consultation, call us at (978) 612-6447, or contact us online.

About the Author

Matthew Gilman

Meet Matthew Gilman Attorney Matthew Gilman understands the difficulties his clients face when their driver's license is suspended or they are charged with an OUI/DUI.  Prior to opening his law practice, Attorney Gilman worked as a Registry of Motor Vehicles (RMV) hearings officer. During his t...


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