Should one be able to challenge the accuracy and reliability of the breath test machine? See what one lawyer has attempted to do! The first Lawyer-Scientist1 (only one in Massachusetts) as distinguished by the American Chemical Society ACS offers the following:
Sometimes one should be careful what they ask for? Back in 2008 I began to ask for the Source Code of the Alcotest 7110 to see if the breath test machine was or is a reliable machine in testing the alcohol content of suspected DUI/OUI clients.
We began by stating that the contract signed between Draeger the manufacturer and the State of Massachusetts gave all rights and obligations to the State, hence under Rule 13 was in the custody and control of the Commonwealth and discoverable!
This argument worked and lead to a response from the ADA’s that if we gave the source code to the defendant, then we would be in breach of or violating a contract right with Draeger. To that a judge dismissed the case against my client stating that a defendant’s rights trump those of a civil contract. I was able to get close to 5-7 cases dismissed using this logic. Other defense lawyers saw the results and began to ask for the motion and began to emulate the success.
The attention was too big and the Government appealed one of my client’s cases, Daens and 61 others.
After a long delay, the source code was produced, evaluated by experts and before all the experts where allowed to testify, the judge denied having a Daubert/Lanigan hearing on whether the Alcotest breath test machine is accurate and reliable.
We needed to try all the cases and have one loss in order to get this issue before the Appellate or Supreme Judicial Court (SJC). Of the 28 or so cases I had, we ended up trying them and winning them (good for the clients, bad for the source code challenge). I did have one teed up as they say, but that client passed away before the trial began.
In the hyperlink below is the argument before the SJC on this issue!
Due Process is the fundamental issue before the court. Can this machine be attacked and challenged, this author still believes so! Let’s see what the court decides, this argument was held on February 5, 2015.
1Lawyer-Scientist is a distinction earned by taking over 140 hours of classroom hands on training sanctioned by the American Chemical Society the largest accumulation of scientist in the world.