District Court Consolidated "Source Code Cases"
Associate Justice, Mark A. Sullivan (February 3, 2011)

The standards set forth in 'Daubert' and 'Lanigan' are not applicable to breath test evidence, which is expressly made admissible by statute.

Any alleged "defects" in the source code of the breath test instrument do not undermine the scientific reliability of the device.

The 2100:1 blood-breath ration is scientifically reliable.

The defendants have been charged with operating under the influence of alcohol. Each defendant, at the time of arrest, submitted to a breath test producing a result that the Commonwealth intends to admit into evidence at trial. The breath test instrument in the Commonwealth, at this time, is the Draeger Alcotest 7110. The cases were consolidated by the District Court Administrative Office. Judge Mark A. Sullivan was assigned to hear the cases. The defendants filed a collective Motion In Limine To Exclude Alcotest Results As Scientifically Unreliable claiming that the source code within the Alcotest instrument fails to meet with general acceptance within the scientific community. They also claimed that blood-breath conversion ration used by the instrument fails to meet the general acceptance standard. They moved the Court to hold a Daubert-Lanigan hearing and exclude the breath test results from evidence. The Court denied the defendants' motion for a hearing.

General Admission of A Breath Test Result:
The language in G.L. c. 90, § 24 expressly allows for the admission of a breath test result to prove an operating under the influence offense. In addition, the regulatory scheme in 501 CMR 2.00 et al sets out the certification process and the procedures that must be followed when administering a breath test. The Court found that "the statutory and regulatory scheme is a comprehensive one and ultimately stands for the proposition that the breath test evidence, generated by properly certified machines and personnel, shall be both admissible and relevant in the prosecution of OUI cases in the Commonwealth."

Source Code:
The source code is the programming that makes an instrument work. All instruments have a source code. The defendants' claimed that the source code in the Alcotest 7110 has fatal flaws that make the instrument unreliable and thus, the breath test results should be excluded.

Massachusetts utilizes the same breath testing instruments as New Jersey. Therefore, rather than hold a hearing, the Court relied on State v. Chun 194 N.J. 54 (2008), a case in which the New Jersey Supreme Court rejected the defendants' claims regarding alleged "defects" in the source code of the Alcotest 7110. The Court found that none of the alleged issues in the source code of the Massachusetts instrument undermine the overall reliability of the device.

Blood-Breath Ration:
The defendants also argued that the blood-breath ration of 2100:1 is inaccurate, based on out-dated science, and does not take into account genetic and environmental factors. All breath-testing instruments certified in the Commonwealth use the 2100:1 blood ration to calculate the blood alcohol concentration of an individual. The instrument collects a breath sample, analyzes the sample for alcohol content, multiplies the result by 2100 and reports the result as the individual's blood alcohol content. The Court rejected the defendants' argument ruling that Massachusetts Courts have previously recognized the reliability of the core scientific principles underlying the use of breath test evidence. Commonwealth v. During, 406 Mass. 485 (1990), Commonwealth v. Neal, 392 Mass. 1 (1984) and Commonwealth v. Cochran, 25 Mass. App. Ct. 260 (1988). "The Courts have consistently held that breath test evidence is generally accepted as reliable. A Daubert-Lanigan hearing is not required."

Note: Massachusetts is in the process of upgrading the breath test instruments from the Alcotest 7100 to the Alcotest 9500. The 9500 was not part of this litigation.