Massachusetts breath test source code litigation takes a step forward for the defense after hearing before SJC Justice

Massachusetts Supreme Judicial Court Justice Botsford heard oral argument today relating to the Statewide challenge to the Alcotest breath test machine used to prosecute drunk driving cases in Massachusetts.  She heard appeals in the two challenge to the breath test source code, one arising from the Concord District Court and the other arising out of the Boston Municipal Court.

From the argument it appears as though Justice Botsford will rule in the following way:

Justice Botsford indicated she would try to find a way to consolidate the two cases as it does not make financial or practical sense to have two hearings challenging the breath test machine.  Further, she asked both sides if they could live with the protective order drafted by Judge McManus.  The defense indicated that all clients in the Concord litigation would prefer to have their case consoidlated with the Boston litigation.  Additionally, Justice Botsford asked if the defense expert would sign the protective order drafted by Judge McManus. The defense indicated he would sign it.  In contrast, the defense expert refused to sign the protective order drafted by Judge Brennan who is presiding over the Concord breath test litigation.

The defense lawyer from both sides urged the Justice Botsford to keep the case before Judge McManus.

Justice Botsford seemed to recognize that the right of confrontation and to challenge the reliability of the machine should be paramount.  She stated that Draeger’s right do not get to call the day.

A major concern for Justice Botsford is that if the defense does not get access to all discovery, further litigation and appeals would arise. In the Concord litigation, Judge Brennan did not allow the defense access to the most reliable dynamic testing; Judge McManus allowed dynamic testing.  Justice Botsford indicated you cannot have a hearing where one set of defendant’s receive less information than another set of defendants relating to the same machine.

It was pointed out to the judge that the source code is being provided in the litigation in Washington State.  This is significant as I think the Justice recognizes that if the best technology is not used to review the source code, it will produce more litigation on this issue in the future.

The attorney from Draeger was asked if Draeger intends to appeal Judge McManus’ protective order; he declined to comment as the order has not been issued.  Judge McManus’ order is expected to be issued within a week.

It appeared as though Justice Botsford favored the order of Judge McManus.  This could mean an end to the Concord litigation; this would be a victory for the defense as Judge Brennan’s orders allowing limited discovery, would not allow for a full and complete challenge to the accuracy of the breath test machine.

As a Massachusetts OUi Lawyer, this hearing appears to be a significant victory for the defense.  I have over 25 clients who have their cases joined with this litigation and many who have had their case stayed pending this appeal.  It appears this appeal will move forward on the merits of whether the Alcotest 9510 has a reliable source code and whether the machine is scientifically reliable despite the problems with calibrating the machine.  Justice Botsford took the matter under advisement and did not provide a timeframe for a decision.

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