The Massachusetts Supreme Judicial Court is requiring the Court to hold an evidentiary hearing on the reliability of the breath test device the Alcotest 7110. The SJC held that the trial judge’s decision not to hold an evidentiary hearing addressing challenges to the reliability of the machine was wrong. The SJC clearly stated that a defendant who makes a proper showing addressing the reliability of the breath test machine is entitled to a hearing. In other words, the Court stated that trial judges are not permitted to assume that the breath test machine is accurate merely because the legislature approves breath testing under the law, but that breath test is scientific evidence that the Court should hold a hearing to address challenges to its reliability.
The SJC indicated it would retain jurisdiction of the case and require a report within 90 days. It appears that the SJC will review any decision of the district court and address the three issues that it indicated were raised by the case.
The hearing in Com. v. Kirk Camblin, will address the following issues:
- The Reliability of the Source Code for the Breath Test Machine;
- Whether the Alcotest 7110 is scientifically reliable because it does not test exclusively for ethanol;
- whether the Alcotest’s calibration method allow the Alcotest to accurately measure BAC.
The SJC rejected one of the defense arguments that the Alcotest was not infrared technology as required under Section 24K because the infrared portion of the machine does not alone control whether the machine produces a valid test result. The SJC found that even though the Alcotest also uses fuel cell technology it does not negate that it is using infrared breath technology under the Statute and regulation.
Issues to be Decided by the Trial Court and Reviewed the State Supreme Court
Flaws in the Source Code
The defense produced an expert that found over 7, 000 errors and 3, 000 warning signals in the Alcotest computer source code. The Commonwealth contends that despite those errors the breath test machine is still reliable and source code errors are to be expected in a complex computer program. The SJC indicated that the Court does not require scientific evidence to be infallible, but that an evidentiary hearing was needed to address this claim.
As part of his reason for denying the evidentiary hearing, the trial judge relied on the case of State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825 (2008) where the New Jersey Supreme Court rejected a challenge to the reliability of the Source Code; however, the SJC held that trial court cannot resolve these claims without allowing for an evidentiary hearing.
Breath Test is not Specific for Alcohol
The defendant argued that the Alcotest was also incapable of measuring exclusively for ethanol. The defense argued that the Alcotest cannot distinguish between interfering substance and compounds that absorb light at the same micron level as ethanol. The defense claimed that the Alcotest is not capable of measuring alcohol to the exclusion of other interfering substances. The Court reviewed the affidavits submitted by the Commonwealth and found that they were confusing and the record was unclear. The Court indicated that on remand the Court should determine if the Alcotest is sufficiently ethanol specific such that the results are reliable and untainted by interfering substances.
Challenge to the Calibration
The challenge to the calibration seems to be the strongest challenge of the defense. This challenge is different from the calibration errors that have been reported in the media. This challenge is that regulations require a calibration prior to every breath test. The defense claimed that even though the Alcotest appears to calibrate itself, that the source code of the machine takes a different path and executes different instructions for the calibration measurement when it measures the individual’s breath. The defense claims that the machine is not conducting a proper calibration prior to every test as required by the regulations. The SJC noted that the Commonwealth did not rebut any of the defense claims on this point.
This case will be sent back to the district court where a hearing on these issues will be conducted. The Court will address whether:
1. The source code errors are too numerous to make the machine accurate and reliable 2. The Breath test is not sufficiently specific for ethanol to make the results reliable 3. Whether the Alcotest is calibrating itself prior to every test.
As a Massachusetts OUI Lawyer, the outcome of this case is extremely significant because the evidentiary hearing will provide an opportunity to uncover flaws with the Alcotest software. As a practical matter, most charged with OUI, even if they could afford an expert to dispute the reliability of the results, cannot afford to hire experts to address issues pertaining to the machine’s source code. Given that the Commonwealth did not study or test the source code prior to implementing the breath test, but assumed its reliability, this hearing is an important opportunity uncover flaws with the breath test machine that are very technical and could go uncovered as a result of the high cost to a defendant to uncover problems with the source code.