Back in August of 2015, the Chief Justice of the District Court consolidated the cases of over 500 defendants charged with operating under the influence of alcohol who had filed motions to exclude the results of their breath tests.  The machine in question is the Draeger Alcotest 9510, which is the breath test machine used in Massachusetts since about June 2012.

A few months later, the cases of an additional 64 or so defendants with such motions were consolidated by the Chief Justice of the Boston Municipal Court.  Then, in June of 2016, all of the cases were consolidated by the Supreme Judicial Court.

The District Court hearing the consolidated motions to exclude breathalyzer evidence heard testimony over the course of 11 days, which testimony consisted mainly of scientists who offered opinions and explanations regarding such things as the code used to build and run the breath test machines, and the policies and procedures of the Massachusetts Office of Alcohol Testing (“OAT”) in implementing the use of the devices.

The court applied the so-called Daubert-Lanigan test for the admissibility of scientific evidence.  That test requires the judge to perform a “gatekeeper” function and exclude evidence unless its proponent demonstrates that the expert testimony (or evidence produced by a scientific theory or process such as breath test evidence) is based on reliable methodology or is otherwise reliable or valid.  In order to make its decision, the court heard evidence of both static and dynamic tests of the Draeger machine, along with review of written materials and code.

Interestingly, during the course of the hearing, it was discovered that OAT tested 90 of the approximately 350 machines in use in Massachusetts and none of the machines was set correctly, either being set so as to be overly sensitive with respect to contaminating substances, or not sensitive enough to such substances.  The court ultimately determined that the incorrect settings did not call into question either the scientific reliability of the Alcotest 9510 or the science underlying it, but the court did suggest that the problem needs to be addressed.

After hearing from experts on both sides, the court did find that from the time that the Alcotest 9510 breathalyzers were deployed in Massachusetts (June 2012) until September 14, 2014, the OAT’s written protocols for the machines were insufficient.

Accordingly, the court held that breath test results from Draeger Alcotest 9510 machines in use in Massachusetts from June 2012 until September 14, 2014 are presumptively excluded for use against a defendant in a criminal trial.  The court allowed that in particular cases the proponent of such evidence might overcome the presumption with specific evidence that protocols were sufficient in that case.

Attorney Kevin D. Quinlan

2 South Main Street, Suite 201

P.O. Box 248

Uxbridge, MA  01569

(508) 723-6384


Leave a Reply

Your email address will not be published. Required fields are marked *