PUBLISHER'S NOTE: Support freedom of the press: August 16, 2018. A day set aside by my American counterparts to denounce the onslaught on freedom of the press launched by President Trump and The Republican Party. It is painful to see my heroes and role-models - the watchdogs over abuse of power - subjected to such degradation by none other than the President of the U.S.A. The actions of Donald Trump reinforce the importance of an independent press in a democracy - and the need to hold politicians accountable to the public. Trump repeatedly refers to journalists as "enemies of the people." Perhaps if he looked in the mirror he would discover who the enemy of the people really is."
Harold Levy: Publisher of the Charles Smith Blog;
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PASSAGE OF THE DAY: "The move is part of an agreement between the DAs and lawyers Thomas Workman of Taunton and Joseph Bernard of Springfield, who are challenging the validity of breath tests as evidence in drunken driving cases. Questions about the reliability of results from any Draeger 9510 breath test machine, used by more than 400 state and local law enforcement agencies statewide, have already led to a 2017 court order excluding the results in more than 19,000 drunken driving cases between June 1, 2012 and Sept. 14, 2014. The new agreement expands that window for excluding breath test results by nearly another three years. It was submitted to the judge in the case, Concord District Court Justice Robert Brennan, on Tuesday, and he must still decide to accept it. Brennan ruled Feb. 17, 2017 that while the Draeger 9510 machines are reliable, the state's protocols for calibrating them were careless. He ruled test results from within that window could still be used, but only on a case-by-case basis when prosecutors could demonstrate the tests were done on a certified machine that had been properly calibrated. The agreement results from a controversy that arose last year when it was determined the state Office of Alcohol Testing, the agency within the State Crime Lab that oversees breath testing technology, failed to submit to the court some 400 documents detailing problems with calibration of the devices. The head of the lab at that time has since been fired. "We learned the state withheld evidence," Workman said. "That's a very bad thing to do in court."
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STORY: "Massachusetts district attorneys agree to toss breath test results in thousands of drunken driving cases," by reporter Patrick Johnson, published by MassLive on August 15, 2018.
GIST: "Breathalyzer results could be tossed out as evidence in thousands of drunken driving prosecutions as part of an agreement between all of the state's district attorneys and the defense lawyers in a long-running case challenging the reliability of the testing devices. Each of the state's 11 district attorneys have agreed not to use breath test results in drunken driving prosecutions for arrests before Aug. 31, 2017. The only exceptions are cases involving death or serious injury, or anyone facing charges for a fifth offense or higher. The move is part of an agreement between the DAs and lawyers Thomas Workman of Taunton and Joseph Bernard of Springfield, who are challenging the validity of breath tests as evidence in drunken driving cases. Questions about the reliability of results from any Draeger 9510 breath test machine, used by more than 400 state and local law enforcement agencies statewide, have already led to a 2017 court order excluding the results in more than 19,000 drunken driving cases between June 1, 2012 and Sept. 14, 2014. The new agreement expands that window for excluding breath test results by nearly another three years. It was submitted to the judge in the case, Concord District Court Justice Robert Brennan, on Tuesday, and he must still decide to accept it. Brennan ruled Feb. 17, 2017 that while the Draeger 9510 machines are reliable, the state's protocols for calibrating them were careless. He ruled test results from within that window could still be used, but only on a case-by-case basis when prosecutors could demonstrate the tests were done on a certified machine that had been properly calibrated. The agreement results from a controversy that arose last year when it was determined the state Office of Alcohol Testing, the agency within the State Crime Lab that oversees breath testing technology, failed to submit to the court some 400 documents detailing problems with calibration of the devices. The head of the lab at that time has since been fired. "We learned the state withheld evidence," Workman said. "That's a very bad thing to do in court." Workman said the 2017 order covered 19,000 cases. The DAs agreeing to expand the exclusion window by nearly three years means the number of affected cases will increase to around 36,000. And if the judge agrees to the defense attorneys' request to extend the window further, the number of cases could expand to well over 40,000, Workman said. Through the end of 2017, the number of drunken driving cases involving a breath test totaled more than 39,000. He and Bernard are requesting that Brennan not allow the use of breath tests as evidence until the Office of Alcohol Testing applies for and obtains a national accreditation. They say the office is the only part of the state crime lab that is not accredited. "To correct the deficiencies that exist, the (Office of Alcohol Testing) must become accredited," Bernard said. The agreement calls for the office to apply for accreditation by next August. Brennan has yet to make a decision on the matter, and a hearing is scheduled next week. The breath test controversy comes on the heels of scandals in the state crime lab involving chemists Anne Dookhan and Sonja Farak, who in unrelated cases were found to have tainted or tampered with thousands of drug samples at their respective labs. Their conduct resulted the dismissal of nearly 29,000 drug cases. Excluding breath test results does not mean the state has to dismiss the charges in related drunken driving cases. Prosecutors can still introduce other evidence such as results of a failed field sobriety test, or the officer's observations that a driver had trouble standing, had glassy eyes or smelled of alcohol. Bernard said problems with the testing and with the crime lab are unacceptable. "Our justice system and public deserve more," he said, adding that defendants in drunken driving cases can go to jail, lose their jobs and lose their right to drive. "The Office of Alcohol Testing is directly responsible for insuring that breath tests provide accurate and precise results," he said. "To be trusted by the public, the evidence used in the justice system has to be correct. If not, then the trial is not fair." Workman said that until the office is accredited, questions will hang over all breath test results introduced at trial. Until the problems arose, any test showing a blood-alcohol reading of .08 percent -- the legal definition of intoxication in Massachusetts -- was a legal slam dunk for prosecutors. "The public and juries wants to believe the machines," he said. "But what do you do when the machine is wrong or has not been calibrated correctly?" The Massachusetts Executive Office of Public Safety and Security on Wednesday issued a statement on the matter. It also sent a letter to each district attorney. "The integrity and accuracy of breath test instruments in use across the Commonwealth at this time has never been determined to be an issue in this case and we stand behind these instruments' ability to accurately determine the breath alcohol level of drivers charged with operating under the influence, " it said. "The Office of Alcohol Testing has been working diligently to improve transparency by increasing the availability and accuracy of documents and data in its possession." Law Enforcement continues to use the breath tests in cases of suspected drunken driving, and the Office of Alcohol Testing continues to certify them. "We maintain full confidence in the integrity and scientific reliability of these instruments as well as the Office of Alcohol Testing's ability to certify them," the statement read. A statement by Berkshire District Attorney Paul Caccaviello said prosecutors have agreed to allow the court to determine the period of time in which "breath test results are not automatically admissible" in OUI prosecutions. "This is a mutual effort to resolve the litigation that has delayed the criminal trials of numerous OUI defendants throughout the commonwealth," he said. Hampden District Attorney Anthony Gulluni could not be reached for comment. Northwestern District Attorney David Sullivan declined comment. His office referred questions to the Suffolk District Attorney's Office, which is more involved in the case. Suffolk County Assistant District Attorney Vincent DeMore told WBUR in Boston on Tuesday that the proposed agreement requires the Office of Alcohol Testing to become accredited and should resolve concerns about the accuracy of testing equipment. "I think far from it being a situation that should shake the confidence of the public, it should be an area where we should have greater confidence in the reliability of the instrument," he said."
The entire story can be found at:
https://www.masslive.com/news/index.ssf/2018/08/mass_das_agreement_to_exclude.html
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
Harold Levy: Publisher; The Charles Smith Blog;
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