MARLBOROUGH, MA- If you or someone you know has been convicted of an OUI in the past, chances are you've been paying close attention to the recent Supreme Court Ruling regarding the potential of hundreds of convictions that may be overturned. Yet the facts surrounding the ruling seem to be a little bit blurry for most.
The Supreme Court of Massachusetts, after reviewing a number of OUI Cases, held a hearing on the reliability of the alcohol breath test machine ALCOTEST 9510 - one that is commonly used in traffic stops and police stations across the state. While many are under the impression that the breathalyzer unit itself was found to be unreliable, one local lawyer says that's "just not true". This knowledge could be the difference between wether or not you have a chance of having your case overturned.
"There's a lot of information out there about the machine itself being ruled as unreliable...and that's just not accurate," says Walter Jabs, local Marlborough defense lawyer. "The challenge was to both the reliability of the machine - as to its source codes, as to its testing, as to its science, as to its procedures - and then also (a challenge) to the Massachusetts' State Police lab; their testing unit and the procedures that are followed to calibrate and test the machines."
After meticulously reviewing and testing the ALCOTEST 9510, the Commonwealth found that the machine itself was reliable. Yet the calibration procedures used by the State Police Office of Alcohol Testing (OAT) were found to be unreliable in an astounding number of cases. "They found over 432 separate times that machines failed calibration and this information was not disclosed to defendants," Jabs explains. "These are annual certifications, which means that if you have, say, 435 annual certifications that are failed, that's a lot of breathalyzers that weren't properly calibrated over a time period."
The result was that the breathalyzers in thousands of cases could have been off, yet the defense was never notified. Despite the findings, however, the situations in which this could mean an overturned case are very specific based on the time periods in which the machines could have been improperly calibrated. Studies found that the affected testing machines would have been in service only from June 2011 to September of 2014.
In addition, Jabs says other stipulations dictate what types of cases will be reviewed, and prosecutors are specifically reviewing cases based around the breathalyzer being the key factor in the conviction. "If your conviction was not based on the breathalyzer; but rather you're drunk driving and you're crossing and swerving the road and somebody testifies that you had ten drinks...and the conviction is really, in essence, based on testimony or other evidence...then your ability to reverse that case significantly declines."
Jabs says while the focus is primarily on cases involving manslaughter with an OUI, serious bodily harm with an OUI or fifth convictions, he recommends that anyone with a case that may have been affected during that time frame seek out representation quickly. "It's never the first OUI that creates the problem," he explains. "But when you get a second or third OUI, there are impositions of criminal time, you can spend time in jail, you can have your license taken away for long periods of time, etcetera."
The ruling mandated that all those that have cases that may have been affected be contacted as soon as possible, yet with such a large amount of time having gone by addresses for the defendants and their lawyers may have changed and attorneys may have left the practice, meaning some may never get the message. "My best advice is that if you were convicted during that time period of June 2011 to September 2014 of an oui and part of that evidence was a breathalyzer test, I would consult an attorney as to what your rights are and I would do so relatively soon."