A battle is raging between drunk driving prosecutors and Massachusetts DUI Lawyers. At the center of the controversy is the “source code,” or computer program used by breathalyzers which are used in Massachusetts DUI cases.
Worcester District Court Judge Mark Sullivan is tentatively scheduled to conduct an evidentiary hearing regarding the Dräger Alcotest MKIII-C, wherein Mass. DUI Lawyers will attempt to attack the reliability of the breathalyzer, based on alleged errors in the device’s “source code,” which is the computer programming which controls the breathalyzer.
New Jersey DUI attorneys have been unsuccessful in their attempts to discredit the Draeger Alcotest MKIII-C breathalyzer through its source code. In the NJ case of State v. Chun, that state’s Supreme Court held that the breathalyzer was reliable and that it could be used in New Jersey DUI cases. The Special Master’s Report in the Chum case (PDF) explains in detail how the breathalyzer works and the role of the breathalyzer’s source code.
It is currently unknown whether Massachusetts will hold a Daubert hearing, which is the mechanism to challenge the accuracy and reliability of scientific evidence. If the hearing is held, Judge Sullivan will determine whether the Dräger Alcotest 7110 is a scientifically reliable instrument for determining the alcohol content of the breath and blood. In the meantime, these devices are still being used in Massachusetts DUI cases. They are slated to be replaced by a newer breathalyzer, the Dräger Alcotest Model 9510.
Under Melanie’s Law, breathalyzers can play a critical role in Massachusetts DUI cases. Prosecutors can obtain convictions simply by proving that a driver was operating on a public way or right of access with a blood alcohol content at or above .08. Melanie’s law makes it unnecessary to prove that alcohol consumption diminished a driver’s ability to operate safely. Just being on the road with a BAC at or above .08 can result in a DUI conviction. Given the importance of breathalyzer results to the prosecution in drunk driving cases, it is not surprising that DUI lawyers from across Massachusetts are trying to attack the reliability of the breath testing devices.
Refusing to submit to a chemical breath or blood test in Massachusetts, after being arrested for operating under the influence, will result in an automatic CTR license suspension from 180 days to life.
