In order to remedy the prejudice caused by OAT’s misconduct against the consolidated defendants and the resulting damage to the criminal justice system, OAT must first demonstrate that its current methodology will produce scientifically reliable BAC results. Mindful that OAT, by EOPSS’s mandate, must ultimately become accredited, the Court is satisfied that this aspect of prejudice can be mitigated by OAT formally filing its application for accreditation, as long as the Commonwealth shows that the application is substantially likely to be approved.2 Cf. Commonwealth v. Baldwin, 385 Mass. 165, 177 (1982) (judge may exclude evidence withheld in violation of discovery obligation as a sanction). The application itself requires OAT to demonstrate that it is comporting with ANAB standards as defined by the ANAB Accreditation Requirements manual. Exhibit 21. Yet, this alone is not a sufficient panacea. OAT must also address the discovery practices that contributed to its misconduct. Specifically, OAT must promulgate formal discovery protocols consistent with those employed by the State Police Crime Management Unit. These protocols must include a definition of exculpatory evidence and an explanation of the obligations pursuant to such evidence. See CPCS, 480 Mass. at 729-734 (2018). Alternatively, the Court will be satisfied by the Commonwealth’s representation that OAT’s discovery is being handled by the State Police CMU. Regardless, the Commonwealth must certify that all OAT staff has been trained on the obligations relating to exculpatory evidence. In the interest of transparency and in the spirit of the Director of Public Safety’s October 16, 2017 directives, OAT’s application for accreditation must be available for viewing on the eDiscovery portal, along with the ANAB Accreditation Requirements manual. At each stage of the accreditation process, updates confirming OAT’s compliance must be posted on the portal. In addition, OAT’s discovery protocol, once promulgated, must be uploaded onto the eDiscovery portal, along with any discovery training materials. The Court finds that making this information available on an electronic public portal will contribute to the restoration of confidence in the reliability of the scientific results produced by OAT, and thus further remedy the prejudice caused by OAT’s violation of its obligations.
Accordingly, the Court orders that the period of presumptive exclusion of Alcotest 9510 breathalyzer results in such criminal prosecutions as have been agreed by the parties shall be extended until the Commonwealth, upon motion to this Court3, demonstrates:
1. that OAT has filed an application for accreditation with ANAB that is demonstrably substantially likely to succeed;
2. that OAT’s accreditation application has been uploaded onto the eDiscovery portal;
3. that the ANAB Accreditation Requirements manual is available for viewing on the eDiscovery portal;
4. that OAT has promulgated discovery protocols consistent with those employed by the State Police Case Management Unit, including a definition of exculpatory evidence and an explanation of the obligations pursuant to such evidence; or, in the alternative, that the CMU is responsible for processing OAT’s discovery;
5. that OAT’s discovery protocol has been uploaded to the eDiscovery portal;
6. that all OAT employees have received training on the meaning of exculpatory information and the obligations relating to it; and
7. that all written materials used to train OAT employees on discovery, and particularly on exculpatory evidence, have been uploaded to the eDiscovery portal.
If all of these requirements have been met, the Court may still, upon motion of the consolidated defendants, reinstate the period of presumptive exclusion if OAT fails to update the progress of its application for accreditation on the eDiscovery portal, or otherwise fails to make good faith efforts to gain accreditation. See Parties’ Joint Stipulation, Exhibit 1, p. 4 (“Accreditation of the Office of Alcohol Testing”).
January 9, 2019
Robert A. Brennan
Justice of the District Court