The recent decision by Massachusetts district court judge Robert Brennan regarding Draeger Alcotest 9510 breath test machines in Massachusetts laid the groundwork for more wide-ranging challenges to the devices. Brennan’s decision is a win for defendants whose breath test results are from 9510 devices that were last calibrated before the state police Office of Alcohol Testing (“OAT”) established written protocols regarding annual calibration on September 14, 2014.
In his decision, Judge Brennan noted that “in the absence of written protocols, it cannot be assumed that any particular calibrator understood or routinely applied the proper standards in calibrating a device.” Therefore, because the devices are calibrated annually, it is possible that anyone with a breath test result from deployment of the machines in June 2012 through late summer of 2015 could have those results excluded from being used against them.
During the last day of hearings before Judge Brennan, a Draeger representative acknowledged that an error in the settings of the 9510 devices sent to Massachusetts did not correctly calibrate measurements between the infrared and electro-chemical fuel cell sensors in the devices. As a result, he acknowledged that in some instances the machine “would not be flagging interfering substances” that could affect results. Judge Brennan, however, denied the defense bar’s motion to continue the hearing until the ongoing investigation into the scope and breadth of this issue is complete.
Additionally, defense attorneys pressed the point that despite ongoing efforts by the Technical Leader of OAT to obtain accreditation by the American Society of Crime Lab Directors, the lab continues its work without such accreditation – a fact undisputed by the Commonwealth.
Another issue raised by defendants is that OAT recognizes what amounts to a seven percent margin of error in blood alcohol content (“BAC”) measurements. As Judge Brennan wrote in a footnote, “this is particularly troubling as it relates to criminal defendants charged under the per se portion” of the statute.” He continues: “Even if the true BAC of the sample … is .076%, the defendant would be criminally liable based upon the reported result” of .08%.
Regarding those breath test results presumptively excluded from evidence because of OAT’s lack of written protocols, Judge Brennan did write that the Commonwealth may demonstrate at trial, “on a case-by-case basis, that a particular Alcotest 9510 was calibrated and certified using scientifically reliable methodology, and thus that a particular BAC result is scientifically reliable.” Defense attorneys believe, however, that the Commonwealth will have a difficult time doing so, especially given the regular turnover of OAT lab personnel and the historically minimal record-keeping effort at the lab.
Judge Brennan’s decision affects 535 cases formally consolidated in the matter, with an estimated two to three thousand additional cases that have been on hold pending its outcome.