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Challenge to Breath Test source code in Massachusetts heads to the Supreme Judicial Court

The Massachusetts Supreme Judicial Court will hear argument in two cases relating to the statewide challenge to the reliability of the Alcotest 9510. The first case is an appeal from the Concord District Court, where over 500 OUI cases have been consolidated pending the challenge to the reliability of the Alcotest 9510.

This hearing arose from the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Camblin, holding that defendants in an OUI case are entitled to challenge the scientific reliability of the breath test machine. The Camblin decision applied to the old machine, the Alcotest 7110. In the Camblin decision, the SJC identified issues that could impact the reliability of the machine.

  1.  whether errors in the source code make it scientifically unreliable. In the Camblin case, a defense expert identified more than 7,000 errors and 3,000 warning signs with the source code.
  2. Is the Alcotest sufficiently specific for alcohol. The Alcotest infrared mechanism operates at a 9.5 micron level to absorb alcohol. Since other compounds display an absorption in this range, is the Alcotest sufficiently specific for alcohol so that it will not give false positive readings, resulting in other compounds being confused for alcohol.
  3. At the evidentiary hearing in Camblin, expert testimony indicated that the machine’s source code takes a different path when performing its calibration.  The SJC noted that the Commonwealth did not rebut this contention, suggesting that expert testimony is warranted as to whether the source code is properly calibrating the machine prior to a breath test.

After the Camblin decision, Defense lawyers throughout the State filed motions challenging the accuracy of the Alcotest 9510. Since motions were being filed statewide, the Court consolidated the issue and required all matters to be heard by Judge Brennan who would preside in Concord District Court for these hearings.  I have at least 25 clients who have had their case stayed pending the outcome of this hearing.

Discovery issues holding up a Hearing on the Merits of the Reliability of the Machine

The defense lawyers in the Concord case filed some discovery motions which were denied by judge Brennan, resulting in the appeal to the SJC.  This Blog will discuss those discovery issues.

Since Boston is technically a separate entity from the district courts, attorneys who had cases within the Boston Municipal Court, including, West Roxbury, Dorchester and East Boston, filed requests to challenge the Alcotest 9510. The BMC cases were consolidated before Judge McManus.

The two cases have taken divergent paths. Judge McManus essentially approved the motion that was denied by the judge in Concord. Accordingly, the district attorney’s in the Boston cases have objected to a separate hearing and are requesting the SJC to consolidated all cases with the Concord litigation.

  • Here are the keys issues that the SJC will be argued this Tuesday.
  1.  What method will be used to test the breath test source code?

To properly test a breath test source code, the defense lawyers have argued that a dynamic test is necessary. It is well recognized in the scientific field that a dynamic test is the ideal way to test the reliability of the source code. This type of testing according to the experts allows the analysis to compare what the machine should do to what it actual does when it is tested. As part of the discovery request, the defense requested permission to purchase three breath test machine. This request was denied forcing the defense expert to base an opinion on a less reliable static test. The defense position is that without a dynamic test the analysis of the source code will not be meaningful and be a full and fair challenge to its reliability as contemplated in the SJC Camblin decision.

2.  Protecting Draeger’s trade secrets from disclosure to competitors.  

The second issue for the SJC is the scope of the protective order regarding Draeger’s trade secrets. Draeger has crafted a very restrictive nondisclosure agreement that the defendant’s chosen expert refuses to sign. The defendant’s are seeking a modification of the nondisclosure agreement so that the expert does not fear personal liability as a result of conducting the analysis in this case. Without a modification of the nondisclosure agreement, the defense chosen expert, Samuel Felton, will not be able to review the source code.  In denying the defense request for a modification of the protective order, the trial judge’s ruling was remarkable in putting Draeger’s financial interest in keeping its trade secrets confidential above those of the defendant in ensuring the reliability of the machine.

The judge found that a dynamic test would jeopardize Draeger’s trade secrets and that a statistic test was sufficient to test the reliability of the breath test machine.  The judge found that the property rights of Draeger need to be weighed to ensure that companies have a financial incentive to create a breath test machine.  The trial judge’s decision showed a lack of concern for a vigorous testing of scientific evidence to ensure it is reliable and to prevent the risk of wrongful convictions.


Predicting the Outcome of the Hearing

I will prepare an additional Blog post after the hearing on Tuesday afternoon. Cases within the district court have been continued to September in some courts as the issue before the SJC do not involve the merits of the scientific reliability of the source code. As a Massachusetts OUI Lawyer, would expect the SJC to rule in favor of the defense and permit a full and complete hearing on the issues in the case. If the court were to deny the defendant’s motions, the issues would have to be litigated again before a future court and judge.  I expect the Court’s decision will firmly overule the trial judge and find that the balance of property rights of a technology company cannot override the Constitutional rights of a defendant to effective cross examination and to challenge scientific evidence.

To learn more about dynamic and static testing with source code, this article from Computer weekly captures the differences between the two types of testing.

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