Draeger Challenge Update For OUI Defendants in Massachusetts

Update 11/2/2016:

Update on the Draeger 9510 Breath test Challenge in Massachusetts. After a year of litigation the MA Team has been able obtain two Draeger Machines to have them Static and Dynamically tested.

Click here to download the pdf with the latest scheduling order for the breath test challenge.


A recent Draeger Challenge update for defendants whose OUI cases have been stayed or consolidated. For those who took a DUI breath test in Massachusetts and failed this is very important information your lawyer should know. If they don’t please feel free to call for a free consult at Oberhauser Law or call 978-452-1116 to set up an appointment. See the memo from CPCS below.

On Monday June 6rd, Justice Botsford issued rulings on the interlocutory appeals that have been filed in the BMC and Concord consolidated cases.

Here is a summary of important aspects of the memo and order:

a. The two consolidated cases (560+ cases statewide) which have been proceeding in the BMC and in the District Court (Concord) will be consolidated into a single proceeding for the purpose of the Daubert/Lanigan challenge to the scientific reliability and admissibility of the Alcotest 9510 breath tests.

b. Justice Botsford did not resolve the question of where the new consolidation will be. She left the decision of where the consolidation will be, and who the judge will be, up to the Chief Justice of the Trial Court, Paula Carey.

c. Justice Botsford also upheld the discovery orders from the BMC, including the orders for dynamic testing of the breathalyzer and access to the source code and two machines. Her memo and order provides that all source code will be produced including everything necessary for dynamic testing, and requires that the MSP and Office of Alcohol Testing provide the defense expert with two machines for 60 days. Justice Botsford acknowledged that nothing like this was done in Camblin and indicated she thought it best to allow dynamic testing in these cases based on the defense’ submissions.

d. The protective order written by Judge McManus in the BMC will govern the disclosure and use of the protected materials, to be finalized by whatever judge is ultimately assigned the new consolidation.

e. The BMC cases are scheduled for a hearing in the BMC on June 21st to address a Commonwealth motion on Rule 14 discovery and to update the court on a plan for how the static and dynamic testing of the machines will occur. The Commonwealth has provided some discovery, and report that they are working on providing more. They also filed a motion for clarification on a number of items that were allowed by the court. That motion is also scheduled for June 21st.

f. If you have cases involving the Draeger 9510 Alcotest Breathalyzer, while you cannot join your cases to the consolidated action, you should consider whether or not it makes sense to seek a “stay” in some or all of them (if you haven’t done so already), after discussing the issues with your clients. Alternatively, if seeking a stay is not a viable option for your clients, you may wish to object to admission of any breathalyzer evidence on reliability grounds given the pending Daubert challenge.

We are fighting the good fight for justice, Greg


Related Information:

Is A Breath Testing Machine Accurate And Reliable?

Breathalyzer Malfunction: 2 Years of Mass. DUI Cases In Question

Flawed OUI Breath Test Machine Results Throughout the Area

Attorney Gregory Oberhauser

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Gregory Oberhauser is the ONLY attorney in Massachusetts to be distinguished as an ACS-CHAL Forensic Lawyer-Scientist by the American Chemical Society!

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