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The hearing regarding the scientific reliability of the Draeger Alcotest 9510 breath test machines concluded with closing arguments on Friday, February 3.

The defense bar argued that because the relevant statute states that simply driving with a .08 blood alcohol concentration, as measured by the 9510 machine, is enough for a conviction, regardless of the tolerance an individual driver may have or any effect on their driving, the reliability of the machines should be subject to the highest scrutiny.

The defense bar suggested alternatives if Judge Brennan fails to find the 9510 machine unreliable. It was suggested that the court mandate that a technician or someone else with technical knowledge of the machine testify and be subject to cross examination to avoid the current problem of state witnesses “hiding behind a veil of ignorance” regarding the inner workings of the machines.

It was also suggested that the model jury instructions regarding the certification of a .08 or higher breath test result and a per se violation of the .08 statute be modified to make juries aware that there may be variances in breath test results.

Finally, it was argued that defense attorneys in Massachusetts should be allowed to attend training on the 9510 breath test machines, as they are allowed in other states (e.g. New Jersey).

The Commonwealth argued that the standard of review in hearings such as this is by a preponderance of the evidence, not the highest scrutiny as suggested by the defense.

The role of the court in this matter, it was argued, is to keep out junk science. The Commonwealth disputed claims of unreliability of the machines by stating the statute requires an infrared testing device and that the 9510 is such a device with the added function of a fuel cell that does not change the infrared function but enhances it.

Judge Brennan told the parties he expects to produce his written decision regarding the matter no later than March 1, 2017.

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Joseph Waldbaum

Joseph Waldbaum

Joseph Waldbaum has been licensed as an attorney in Massachusetts for the last nineteen years. He has also been a member of the National College of DUI Defense for fifteen years, routinely attending their national seminars. You may learn more about Mr. Waldbaum through his websites at, or You may also reach him by phone at 978.921.4100 or at

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