Breathalyzer source code hearing in Massachusetts drunk driving cases denied by trial judge

A Massachusetts trial judge, Mark Sullivan, in the case of Commonwealth v. Anthony Daen, denied the defendant’s request for a Daubert-Lanigan hearing in a group of Massachusetts drunk driving cases that were consolidated for the Honorable Judge Mark Sullivan out of the Lawrence District Court. The case involved 60 defendants charged with operating under the influence of alcohol where the defendants submitted to a breathalyzer test.

A Daubert-Lanigan hearing is hearing that a Massachusetts criminal attorney can request challenge the scientific reliability of expert testimony. When this hearing occurs, the Commonwealth presents its proposed scientific evidence to a judge prior to trial so that the judge can determine whether the evidence is sufficiently reliable for a jury to hear the evidence. If a judge finds that the evidence is not scientific reliable, it will be excluded from evidence.

Judge Sullivan ruled that the Daubert standard does not apply because the Massachusetts legislature made breathalyzer test results admissible by statute and devised a statutory scheme for the admissibility of breathalyzer test results. Accordingly, the judge ruled that a Daubert hearing is inapplicable because the test results are admissible under Massachusetts OUI law.

As a Massachusetts OUI attorney, I would expect the defense to appeal the decision of Judge Sullivan as I think his reasoning on this issue is incorrect. First, the legislature cannot remove from the court the function of determining the reliability of evidence as it is the function of the court to ensure a defendant’s right to a fair trial and effective cross examination is preserved under the Constitution. While the legislature can determine what evidence is admissible at trial and the method of how it is admitted at trial, it is ultimately the job of the court to determine whether evidence is reliable and should be admitted. The court can never transfer to the legislature the power to determine whether an individual’s constitutional rights to effective cross examination and due process have been denied. Evidence that is not scientifically reliable has the power to deny a defendant a right to a fair trial, due process of law and effective confrontation. Accordingly, the judge should have allowed for a hearing on the issue as to whether the source code for the breathalyzer machine used in Massachusetts is scientifically reliable.

The judge next concluded that even if he were to reach the merits of the issue, he would have determined that the breathalyzer source code is scientifically reliable, in part relying on the decision of the New Jersey Supreme Court in State v. Chun, 943 A.2d 114 (2008). The flaw in the court’s logic is that it denied the defendants in the case before it the opportunity to present evidence to the court that may not have been raised in the Chun case. Further, the court never heard the testimony that was heard in the Chun decision and accordingly, the court may have reached a different result upon hearing the testimony regarding the problems with the breathalyzer source code. The filing in the Chun case can be found in the lead counsel, Evan Levow’s website by clicking here.

Given the recent problems discovered with the accuracy of scientific evidence, the court’s refusal to conduct a hearing to determine the reliability of the breathalyzer test, given that the Chun decision found numerous flaws with the breathalyzer device, is an incorrect application of the Daubert test and should be reversed on appeal. The Massachusetts OUI attorneys before Judge Sullivan will likely appeal the ruling and ultimately the issue will be resolved by the Massachusetts Supreme Judicial Court.

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