The Massachusetts defense bar is challenging the scientific reliability of the Draeger Alcotest 9510. The 9510 is currently the only breath test machine used in Massachusetts to determine the alleged blood alcohol content of driver’s arrested for operating under the influence (“OUI”).
This litigation had been proceeding simultaneously in the two separate district court departments of Massachusetts: Boston Municipal Court (consisting of 8 district courts in Boston) and the District Court Department (61 district courts outside of Boston). One judge had ordered Draeger to provide machines to the defense bar and the other judge did not so order. The obvious inefficiency of the same statewide litigation proceeding on two separate tracks was resolved by Supreme Judicial Court Associate Justice Margot Botsford.
Justice Botsford ordered that the two groups of consolidated cases be combined as one. She also ordered that the government shall provide the defendants with access to two of the breath test machines and the source code for the machines along with any other materials necessary to enable experts retained by the defense to conduct testing of the source code.
The hearing to determine the reliability of the machines is currently scheduled for November 7-10, 2016 in Concord District Court. Because of difficulties obtaining the materials ordered by Justice Botsford, however, it is likely that the date of the hearing will be pushed back even further, leaving several hundred OUI cases involving breath tests in limbo indefinitely.