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Report finds state lab withheld breathalyzer test results

By Aimee Ortiz and Globe Staff 

The head of a state crime lab office was fired Monday after investigators found that staff withheld exculpatory evidence from defense lawyers in thousands of drunken-driving cases since 2011, a disclosure that could threaten many convictions.

In a report released Monday, state public safety officials concluded that the Office of Alcohol Testing routinely withheld documents from defense lawyers in a lawsuit challenging the reliability of breathalyzer test results due to an “unwritten policy not to turn these documents over to any requester.”

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The documents included evidence that breath testing devices had failed to properly calibrate during the office’s certification process, the report found.

“We conclude that OAT leadership made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions,” the report found.

“These failures left prosecutors in the position of unwittingly representing to the court, and to defense counsel, that the Commonwealth had complied with its discovery obligations, when it fact it had not,” the report concluded.

The investigation was conducted by the state’s Executive Office of Public Safety and Security. The Office of Alcohol Testing is part of the State Police crime laboratory and oversees the breath testing program for the state. It had been led since December 2013 by Melissa O’Meara, who was fired and replaced by Curtis Wood, the undersecretary for forensic science and technology .

Daniel Bennett, the state’s secretary of public safety, said he plans to hire a retired state judge “with experience presiding over criminal cases” to help the office handle court-ordered discovery.

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The state launched its investigation in August amid allegations from defense lawyers that the office failed to turn over evidence that the machines may have provided hundreds of flawed results over a two-year period.

The lawyers, who represent 750 drunken-driving defendants in the lawsuit, said the state's findings would have sweeping consequences.

“This is going to impact every single breathalyzer test case,” said Joseph Bernard, lead counsel in the case. “Every single breath test from 2011 to the present will be impacted by this.”

The case is reminiscent of the actions of Annie Dookhan, a former state chemist who was convicted of tampering with evidence and fabricating results in drug cases, leading to the dismissal of more than 21,000 charges in 2016.

Bernard said the office was run with an “us versus them” mentality and said he believed the failure to turn over documents was intentional.

“It’s disingenuous to say they made an unconscious mistake,” he said. “When you’re ordered to turn over all work sheets, and you don’t send over 400 failed calibration work sheets, that’s not legalese.”

The lawyers received nearly 2,000 work sheets completed by state chemists who calibrated the machines. Nearly all showed the machines gave accurate readings. But the 400 tests without accompanying work sheets showed flawed results, according to the lawyers.

The state report determined that the alcohol testing office handles its own requests for discovery and has no written policies on discovery. Its responses to requests “appeared to have been designed to minimize disclosure.”

“While nothing prevented OAT from seeking legal assistance . . . in practice OAT often sought to answer legal process without consultation with attorneys,” investigators wrote.

O’Meara indicated “she had received no formal training in how to respond to discovery requests.”

Bernard said the office had an almost “holier than thou” attitude that led them to “hide the ball when it should have been an open process, as it is in many other states.”

“It’s so unfair to the prosecutors, the judge, every citizen, not just those who went to jail or lost their license,” he said. “Everybody who pays taxes deserves better.”

Even before the investigation began, prosecutors had decided not to offer evidence collected by the breath test machines in trials or plea negotiations.

Thomas Workman, a lawyer for the drunk-driving defendants and a forensic scientist who discovered the withheld evidence, said the office’s failings go beyond incompetence.

“This is pretty fundamental stuff and it just wasn’t being done,” he said.

The episode marks “another chapter in the [Annie] Dookhan legacy,” Workman said. “I’m surprised that they haven’t put crime-scene tape around the Office of Alcohol Testing.”

Workman and Bernard said they are still waiting on evidence from the state.

“We were told that it’s in the mail three weeks ago?” Workman said. “I don’t know what’s going on. Something is going on though, and it’s not good.”


Aimee Ortiz can be reached at aimee.ortiz@globe.com
Follow her on twitter @aimee_ortiz.