BACKGROUND: TECHNOLOGY: In the last several years I have been spending considerably more time than usual on applications of rapidly developing technology in the criminal justice process that could effect the quality of the administration of justice - for better, or, most often, for worse. First, of course, predictive policing (AKA Predpol) made it’s interest, at its most extreme promising the ability to identify a criminal act before it occurred. At it’s minimal level, it offered police a better sense of where certain crimes where occurring in the community being policed - knowledge that the seasoned beat officer had intuited through every day police work years earlier. Predpol has lost some of it’s lustre as police departments discovered that the expense of acquiring and using the technology was not justified. Then we entered a period where logarithms were become popular with judges for use on bail hearings and on sentencing, In my eyes, these judges were just passing the buck to the machine when they could have, and should have made their decisions based on information they received in open court - not from Logarithm’s which were noxious for their secrecy, because the manufacturers did not want to reveal their trade secrets - even in a courtroom where an accused person’s liberty and reputation were on the hook. of these logarithms on bail and sentence have come under attack in many jurisdictions for discriminating against minorities and are hopefully on the way out. Lastly. facial recognition technology has become a concern to this Blog because of its prove ability to sweep up huge numbers of people and lead to wrongful arrests and prosecutions. May we never forget that a huge, extremely well-funded, powerful industry, often politically connected industry is pushing for profit use of all these technologies in the criminal systems - and, hopefully, in the post George Floyd aftermath will be more concerned with the welfare of the community than their bottom Line. HL.
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PUBLISHER"S NOTE: Another aspect of technology is the sophisticated electronic equipment such as breathalysers used by police to gather scientific evidence - in today's post the presence of a quantity alcohol in the driver's blood - which is than used in court to obtain a conviction. As you will see, Massachusetts has had terrible problems with its breathalysers. (In Massachusetts they call them 'breath test machines." But my sympathy lies with people who may have been charged with a serious driving offence - and subsequently being convicted and facing fine and loss of license - on the basis of flawed breathalysers. (Apart from having to go to the expense of obtaining a lawyer). The state just has to get it right - or stop using these devices.
Harold Levy Publisher: The Charles Smith Blog.
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QUOTE OF THE DAY: "Here we go again," said Springfield lawyer Joseph Bernard, who led the litigation stemming from the earlier issues. "It’s time to stop the madness and end the use of this machine completely."
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PASSAGE OF THE DAY: "In 2015, it was discovered that the Draeger Alcotest 9510 machines had not been properly calibrated to the narrower margin of error required by Massachusetts law. State officials initially blamed error by the officers running the machines, but acknowledged asking for a software update and recalibration of the machines. Over the next several years, attorneys working on behalf of accused drunken drivers would turn up evidence that officials concealed the number of instances where machines were not able to be properly calibrated. The issue also led to the revelation that the technology used by the Alcotest 9510 had not been properly vetted by a court to determine its scientific reliability. Ultimately, breath test results from 2011 until the lab gained accreditation last year were barred from use, and thousands of people were notified that they may have the right to a new trial in their case. “Here we go again," said Springfield lawyer Joseph Bernard, who led the litigation stemming from the earlier issues. "It’s time to stop the madness and end the use of this machine completely."
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PASSAGE TWO OF THE DAY: "While most people charged with a first-time drunken driving offense spend no time in jail, the charge can carry serious collateral consequences, said Bernard.
"People’s lives are turned upside down, they lose their job, and some actually go to jail based upon the results of these machines. This has to come to an end immediately,” said Bernard in a press release. There is also a relatively short window for people to challenge a license suspension, he said. A driver who improperly lost a license and suffered other consequences cannot get that time back. "
STORY: "Another serious flaw emerges with breath test machines," published by Salem News on June 1, 2020.
SUB-HEADING: "Some lawyers say it's time to replace them."
GIST: "Just months after prosecutors were allowed to resume using the results of breath tests for alcohol in drunken driving cases, another problem has been found in the machines used by every police department in Massachusetts to perform those tests.
In a memo Wednesday, the director of the state police crime lab acknowledged that hundreds of times since the Draeger Alcotest 9510 was purchased by the state in 2011, the machines have transmitted test results — as well as information about refusals — directly to the Registry of Motor Vehicles without legally-required certifications by the officer conducting the test.
Results that are over the legal limit, or a report of a refusal, trigger mandatory license suspensions by the Registry on top of any criminal charges that are filed, which carry their own potential license penalties. "I think the story here is why are they still using these machines?" said Salem attorney John Morris, who heads the Essex County Bar Association advocate program.
The memo, from Kristen Sullivan, director of the state police crime lab, was sent out Wednesday to prosecutors and defense attorneys across the state.
It says that the Registry first told the Office of Alcohol Testing (which is charged with overseeing the machines) about the issue on May 7 after a report of a breath test refusal was sent to the Registry with blank fields.
Those fields were where an officer should have certified that he or she prepared the report and that it was submitted under pains and penalties of perjury.
After getting that information, the lab did a search going back to April 2019, when the tests became admissible again, and turned up 44 cases where a person refused the breath test and 26 cases where a test was completed, but certifications were missing.
They then went back to 2011 and ultimately identified a total of 231 refusals and 204 tests with results where the fields were left blank.
The machines are supposed to "time out" after a period of inactivity, but they still send the data to the Registry. Sullivan suggested that could be the issue, but the agency is still investigating.
She also said that police departments have been told of the issue and reminded that officers administering the tests must complete all of the fields on the screen. And, she said in the memo, the lab is working with the manufacturer as well.
In 2015, it was discovered that the Draeger Alcotest 9510 machines had not been properly calibrated to the narrower margin of error required by Massachusetts law. State officials initially blamed error by the officers running the machines, but acknowledged asking for a software update and recalibration of the machines.
Over the next several years, attorneys working on behalf of accused drunken drivers would turn up evidence that officials concealed the number of instances where machines were not able to be properly calibrated.
The issue also led to the revelation that the technology used by the Alcotest 9510 had not been properly vetted by a court to determine its scientific reliability. Ultimately, breath test results from 2011 until the lab gained accreditation last year were barred from use, and thousands of people were notified that they may have the right to a new trial in their case.
“Here we go again," said Springfield lawyer Joseph Bernard, who led the litigation stemming from the earlier issues. "It’s time to stop the madness and end the use of this machine com
https://www.salemnews.com/news/local_news/another-flaw-emerges-with-breath-test-machines/article_6c3c6767-78a5-553b-8cb4-b8833b9c5377.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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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