Michael DelSignore, a Massachusetts OUI lawyer and today's video I'm going to talk about
What do you do if your Breath Test is presumably excluded by Judge Brennan's decision in
the Anaya's case?
Now, there's two categories of cases, if your Breath Test falls or certified prior
to September 14, 2014 then it's presumably excluded.
If it's after that date, the Commonwealth could potentially get the results of the evidence but there's
still some other challenges and motions that you can to make to still prevent that results from
coming in to evidence.
But let's first talk about "What if the court says presumably excluded and you are
in one of those Counties where they still want to get the tests in anyway.
In that case, the Government is supposed to call a witness who actually certified the
machine to say that he filed a reliable procedure in conducting the annual certification.
Now, based on the hearing that happened in Concord there was no written protocol prior
to September 14, 2014 that was the bases of Judge Brennan's decision.
He said that they did not have any reliable scientific method to calibrate the machine
prior to that date.
That's why he presumably excluded the results.
Now you'll get in discovery , you'll get some draft maybe a draft protocol or you might
get another protocol about the certification of the gas, the gas cylinder.
So you might some other documents but that's still not a protocol for the annual certification.
That didn't come out until 2014.
So you might get a witness on the stand that's going to say "Well I followed the method".
In that case you can ask about "What training the Officer had?"
"Does the OAT Expert specifically remember performing the test and the calibration on
this machine.
There'll be a worksheet where you'll have notations filled in.
That's gonna be the basis of hearing to get the Breath Test knocked out if it's
considered presumably excluded.
This should be a heavy bar for the government to get these cases and the hearing in Concord
was a two year hearing , there was testimony . In my view the Government is essentially
be delegating this issue.
If there was a procedure, if they were following some sort of procedure that should have been
presented at the prior hearing.
But Judge Brennan did leave the possibility that some technician or some Expert from OAT
could come in and say "Well we followed the method and the annual certification is
accurate or reliable."
Now if your test falls outside that date , there's other issues that could come up.
The Breath Test machines in Massachusetts were all set at a wrong tolerance for interfering
substances.
The test, some of the machines were all set in different numbers.
The Draeger originally set them at 60 and then it was lowered to 38 and some of the
machines were set to 30 so you have different number in terms of what level of tolerance
for interfering substances these machines were set at and that's an issue can be pursued
when you're litigated in these issues about trying to get Breath Test result excluded
bases on the Anaya's decision on the hearing.
There's still some other issues that you want to make sure to look at , you'll be
getting more worksheets down and you want to make sure that your IR and EC are in tied
agreement and that if you have the protocol that was produced in 2014 that specifies what
the IR and EC ranges.
And the reason why they're supposed to be in tied agreement is because the agreement
between when IR and the EC are close that shows that there is no interfering substances.
So there's a lot of things going on now with Breath Test and there's a lot of different
motions , you can do some Rule 17 discovery and if you have any questions on these issues,
feel free to contact me.
I get calls from Attorney's everyday.
I'm happy to answer your questions and help anyone who has these issues because it is
complicated.
There's a lot of law and this could be a lot of cases that's gonna be decided in
the next few months.
There's already been some decisions we're ordering some transcripts and getting those
to prepare for the next hearing.
Again, Michael DelSignore, happy to discuss some breath test issues with anybody and if
you want to talk to me, you can click on the icon below and they'll take you right to
a link where to reach me directly.
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