STORY: "SJC (Supreme Judicial Court) to take up breath test issue in Salem case," by Staff Writer Julie Manganis, published by Salem News, on August 1, 2022.
GIST: "Nearly a decade after her arrest at a state police sobriety checkpoint, Lindsay Hallinan still deals with the fallout.
In October 2013, when a device called the Draeger Alcotest 9510 registered her blood alcohol level at .23, Hallinan figured she had no option but to admit to sufficient facts in the case the following month.
Because it was a second offense, she spent two years on probation, lost her license for the same length of time, and when it was reinstated, she struggled with a malfunctioning ignition interlock device that triggered new license suspensions, her lawyer, Murat Erkan, said.
Hallinan is among approximately 27,000 people who since have been notified that the state lab that oversees all alcohol test devices used by police in Massachusetts tried to cover up issues with the Draeger Alcotest. Inasmuch, the former Danvers woman potentially has the option of getting a new trial.
The problem: Because Hallinan — like the vast majority of drunken driving defendants in Massachusetts courts — resolved the case through an admission to facts rather than a trial, prosecutors are opposing her request.
They point to decades of legal precedent that give significant weight to a person’s admission of guilt or responsibility when considering whether to grant a new trial.
And, they say, there was plenty of other strong evidence that Hallinan was drunk behind the wheel, including the odor of alcohol, her red, glassy eyes, and her failure of field sobriety tests.
But Hallinan’s lawyers say that the conduct of the state lab — which was found to have intentionally withheld evidence about the devices — was so egregious that she’s entitled to a do-over.
Last month, the Supreme Judicial Court announced that it would take up Hallinan’s appeal in order to address what could be thousands of similar requests. It has also asked for “friend of the court” briefs on the issue.
“She feels motivated to stand up against unfairness and for due process of law,” said Erkan, whose practice is in Andover. He reached out to Joseph Bernard, the Springfield attorney who led most of the litigation over the controversial breath-test machines over the past seven years. Bernard is now also representing Hallinan.
Alcotest problems
Issues with the Draeger Alcotest 9510 first came to public attention in 2015, when The Salem News reported that the machines were returning results outside of the acceptable margin of error under Massachusetts regulations — something state officials initially blamed on “operator error,” but also acknowledged they were addressing through a software patch and recalibration.
Later, in the course of litigation led by Bernard, it emerged that the Office of Alcohol Testing had withheld reports of significant problems in attempting to calibrate the machines, which had never been scientifically vetted for use in the state’s courts.
It was discovered that at least one in five machines had failed calibration attempts — information that the lab did not turn over to the court.
Eventually, the use of results between 2011, when the state first purchased the machines, and 2019 was barred. And the 27,000 defendants whose cases rested at least in part on those results were notified.
But was the lab’s conduct so egregious that it should create an automatic presumption that a defendant is entitled to a new trial? Erkan and Bernard believe it does — and they’re joined by defense lawyers all over the state, including the Massachusetts Association of Criminal Defense Lawyers and the state public defender agency, the Committee for Public Counsel Services.
“For years, (the Office of Alcohol Testing) hid evidence that its testing failed to meet minimum scientific standards, rendering its results inadmissible,” the lawyers wrote. “Thousands of individuals were convicted based on these false assurances.”
‘Tests led to pleas’
Judge Robert Brennan, the former presiding judge at Salem District Court, heard the legal challenge to the machines. He’s also the judge who heard Hallinan’s motion for a new trial, since the judge who originally sentenced Hallinan died.
Brennan, who was named to the state Appeals Court earlier this year, stopped short of granting Hallinan a new trial, however, saying he does not believe he has the legal authority to conclude that the lab’s conduct was “egregious” enough to automatically create a right to a new trial — but that a higher court does.
The case has some similarities to the scandals at two state drug labs, where chemists were found to be falsifying test results. Courts later held that the there was no way to specifically identify which cases were tainted by misconduct by the chemists and eventually ordered the dismissal of thousands of drug convictions as a result.
That’s not the case here — at least not yet, Erkan said. The drug cases in the Annie Dookhan and Sonja Farak scandals required proof that the evidence really was an illegal substance, as opposed to a breath test being just one piece of evidence to consider in a drunken driving case.
Defendants seeking new trials, like Hallinan, would also have to show that but for the breath test result they would have been found not guilty.
Essex County prosecutors say the sentence imposed on Hallinan by the judge in 2013, a continuation without a finding on a second-offense drunken driving case less than 10 years after her first drunken driving conviction, was so favorable it may have been a significant inducement to admit to sufficient facts in the case, in addition to the other evidence available.
State troopers noted Hallinan’s appearance, an odor of alcohol, her failure on field sobriety tests and her admission to having had three drinks as other evidence against her in the case.
“Here ... notwithstanding the Alcotest 9510 breath test, the case against the defendant was strong,” a prosecutor wrote in opposing a new trial for Hallinan.
But Erkan and Bernard say it was the breath test result that convinced Hallinan to admit to the offense. They say prosecutors “induced her to forego trial by presenting her guilt as a scientific fact — a fact conclusively proved by a breath test result which it held out as unimpeachable,” her lawyers argue. “It is not a stretch to infer that, of the total number of individuals who took a breath test, a great many did so because they believed they were not impaired and thus not guilty.”
Simply put, people like Hallinan were induced to admit guilt by faulty machine readings, the lawyers argue.
If granted a new trial, Hallinan, now 39 and living in upstate New York, and her lawyer would be able to ask a judge to suppress the breath test result from the evidence against her, leaving officers’ now-nearly decade-old observations as evidence in the case.
The Essex District Attorney’s office has until Sept. 23 to file its response with the SJC and the court is also expecting briefs from the state public defender’s agency and a group of private defense attorneys.
After that they will schedule a hearing."
The entire story can be read at:
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;
