BOSTON, May 22, 2013—A defendant who pleaded guilty to heroin charges before the crisis at the Department of Public Health drug testing facility doesn’t get to withdraw that knowing, willing, and voluntary admission now that one of its former chemists has been indicted, a municipal court judge has ruled.

“If the evidence doesn’t support a case, then we don’t pursue it,” said Suffolk County District Attorney Daniel F. Conley, whose office prosecuted the case and argued against the defendant’s motion to withdraw his plea. “The evidence in this case unquestionable supports the charge and the conviction. The judge here made the right and sensible call on the facts and the law. The crisis at the DPH lab, as grave as it is, is not a ‘Get Out of Jail Free’ card for everyone ever convicted of a drug offense, as some have suggested.”

The decision, authored by Judge Patricia Bernstein and provided to prosecutors today, means that BRIAN BUBANAS’ (D.O.B. 2/13/85) conviction last year on possession of a Class A substance with intent to distribute remains in place. Bubanas was charged with that offense and violating the state’s drug laws in a school or park zone after Boston Police executed a search warrant at his Foster Street home on Sept. 9, 2011, and recovered six plastic bags of a substance believed to be heroin, a dozen prescription pills, empty baggies, and what investigators believe was a drug ledger.

On June 12, 2012, before the certificates of analysis on the suspected heroin were complete, Bubanas pleaded guilty to possession with intent. With his attorney present, he stated that the substance believed to be heroin was in fact heroin, that he possessed it with the intent to distribute it, that the allegations against him were true, and that he knowingly, willingly, and voluntarily admitted they were true. Prosecutors dismissed the school zone violation and Bubanas was sentenced to two years in a house of correction, concurrent with another sentence he was serving.

In January of this year, Bubanas moved to withdraw his plea with no evidence to contradict either the evidence against him or the voluntariness of his admission of guilt seven months earlier. Nor did he make a showing that the former DPH chemist currently under indictment even had contact with the drugs in his case.

“[The] defendant has not raised any additional ground that the particular drugs found in the possession of the defendant are in any way tainted apart from the fact that they were brought to the lab where [Annie] Dookhan was working,” Bernstein wrote. “The court concludes based on the information contained in defense counsel’s affidavit and the commonwealth’s memorandum that drugs seized in the instant case were likely not affected …. As previously noted, no evidence has been proffered that this particular substance was connected in any way to the alleged misdeeds of the one chemist at the state lab who has been charged with criminal wrongdoing or that the factual basis underlying the plea was invalid.”

Assistant District Attorney Vincent DeMore argued in defense of Bubanas’ conviction. The defendant was represented by attorney Dmitry Lev.

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All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.