Commonwealth v. Camblin , 471 Mass. 639 ( 2015 )

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SJC-11774
COMMONWEALTH vs. KIRK P. CAMBLIN.
Middlesex. February 5, 2015. - June 12, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Motor Vehicle, Operating under the influence. Evidence,
Breathalyzer test, Scientific test.
Complaint received and sworn to in the Ayer Division of the
District Court Department on April 28, 2008.
A pretrial motion to exclude evidence as scientifically
unreliable was considered by Mark A. Sullivan, J., and a motion
for reconsideration was considered by him; and the case was
tried before Peter J. Kilmartin, J.
The Supreme Judicial Court granted an application for
direct appellate review.
John Fennel for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
Evan M. Levow, of New Jersey, & Gregory D. Oberhauser, for
DUI Defense Lawyers Association, amicus curiae, submitted a
brief.
2
BOTSFORD, J. In 2013, the defendant, Kirk P. Camblin, was
convicted in the District Court of operating a motor vehicle
while under the influence of liquor (OUI) on theories that
alcohol affected his ability to drive safely and that he
operated the vehicle with a blood alcohol percentage of 0.08 or
greater. 1 Before trial, he, along with sixty-one other
defendants in other OUI cases pending in the District Court,
moved to exclude admission of breath test evidence derived from
the use of a particular model of breathalyzer, the Alcotest 7110
MK III-C (Alcotest), on the basis that errors in the Alcotest's
source code as well as other deficiencies rendered the breath
test results produced by the Alcotest unreliable. The judge
specially assigned to these cases denied the motion without a
hearing, evidentiary or otherwise. We conclude that because
breath test evidence, at its core, is scientific evidence, the
reliability of the Alcotest breath test result had to be
established before evidence of it could be admitted,
see Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994), and, in
this case, a hearing on and substantive consideration of the
defendant's challenges to that reliability were required.
Because no such hearing was held and the Alcotest breath test
result of 0.16 was before the jury as evidence, we vacate the
1
The defendant pleaded guilty to operating a motor vehicle
while under the influence of intoxicating liquor (OUI), second
or subsequent offense.
3
judge's order denying the motion to exclude the breathalyzer
evidence, remand the case to the District Court for a hearing on
that motion, and retain jurisdiction of the case. 2
Facts. We recite the facts as the jury could have found
them at trial. At approximately 3 A.M. on April 27, 2008, State
police Trooper Mark Roy was driving on Route 495 southbound when
he saw an automobile parked off the highway's breakdown lane.
The defendant was standing outside the automobile and urinating.
Roy stopped his cruiser behind the vehicle and approached the
defendant. Once Roy was within five feet of him, Roy smelled an
odor of alcohol. Roy then asked the defendant a series of
questions; in response, the defendant stated that he was on his
way home to Melrose from a bar in Worcester, and that he had
drunk four or five beers at the bar. The defendant's speech was
slurred. In response to Roy's repeated requests for his
registration, the defendant handed Roy two stacks of papers from
his glove compartment without attempting to find the
registration within the stacks. Roy smelled alcohol each time
the defendant moved his body to reach into the glove
compartment. Ultimately, Roy found the defendant's registration
in the stacks of papers.
2
No hearing, evidentiary or otherwise, was held on the
motion to exclude the breathalyzer evidence. Our review of the
record on appeal suggests that an evidentiary hearing was likely
necessary, but we leave this issue to be determined on remand.
4
Roy then asked the defendant to perform three field
sobriety tests. The defendant performed each test poorly and,
based on the these tests as well as the entirety of Roy's
investigation of the defendant, Roy transported the defendant to
the State police barracks in Leominster, where the defendant
signed a consent form by which he agreed to submit to a breath
test. Roy, who was certified to administer the breath test,
instructed the defendant regarding how to perform the test and,
after multiple unsuccessful attempts to give a breath sample,
the defendant eventually breathed a sufficient sample into the
breathalyzer that indicated his blood alcohol content (BAC) 3 was
0.16. 4
The State police used an Alcotest 7110 MK III-C
breathalyzer, manufactured by Draeger Safety Diagnostics, Inc.
(Draeger), to administer the breath test to the defendant. 5 In
February, 2008, approximately two months prior to the day of the
3
Breath alcohol concentration is used to measure blood
alcohol content (BAC) based on "Henry's Law," which is a
principle stating that, at equilibrium, the concentration of
alcohol in an individual's blood is directly proportional to the
concentration of alcohol in the individual's breath. See
Commonwealth v. Smythe, 23 Mass. App. Ct. 348, 350 (1987).
4
State police Trooper Mark Roy testified at trial that
there was no indication the breathalyzer machine was not working
properly as he prepared the machine to administer the breath
test to the defendant.
5
By the time of trial in 2013, the State police had
discontinued use of the Alcotest 7110 MK III-C (Alcotest)
breathalyzer.
5
defendant's arrest, the Commonwealth's office of alcohol testing
(OAT) had certified the specific Alcotest machine used to
administer the breath test to the defendant, and nine days
before the defendant's breath test the State police trooper in
charge of the machine had conducted a periodic test of the
Alcotest machine that indicated it was producing accurate
measurements. Furthermore, the Alcotest machine itself
conducted an "air blank test" to air out the machine prior to
and in between each of the defendant's attempts to provide a
breath sample; these tests measured no alcohol content, as
expected. The Alcotest also by itself ran a calibration test
during the defendant's breath test. The test uses a solution
with known alcohol content, and for a valid test result, the
Alcotest was required to produce a reading between 0.14 and
0.16; the Alcotest's calibration reading of 0.15 fell within
these parameters. 6
Procedural background. On April 28, 2008, a complaint
issued from the Ayer Division of the District Court Department
(Ayer District Court) charging the defendant with operating a
6
The defendant's sole challenge on appeal is to the
accuracy and reliability of the Alcotest's breath test result in
his case. The defendant challenged the Alcotest's reliability
in a pretrial motion in limine, but did not raise any specific
issue about the reliability of the test at trial. He did,
however, object to the admission of his breath test result and
admission of a record of the periodic test of the Alcotest
conducted days prior to his breath test.
6
motor vehicle with a percentage, by weight, of alcohol in his
blood of 0.08 or greater, or while under the influence of
intoxicating liquor, second offense, in violation of G. L.
c. 90, § 24 (1) (a) (1). In August, 2008, a judge in the
District Court allowed the defendant's motion for discovery from
the Commonwealth of the Alcotest's source code 7 and his motion
for leave to issue a subpoena for the same.
After proceedings before a single justice of this court in
a related case, Draeger disclosed the Alcotest's source code
subject to a nondisclosure agreement. Since then, two experts
retained by the defendant received and examined the Alcotest's
source code.
In March, 2010, the Chief Justice of the District Court
specially assigned to a judge of that court the defendant's case
along with sixty-one other cases in which defendants charged
with OUI challenged the reliability of the Alcotest's source
code. Pursuant to her authority under G. L. c. 218, § 43A, the
Chief Justice authorized the specially assigned judge "to
conduct hearings or other proceedings arising in these cases,"
including hearings pertaining generally to the reliability of
the Alcotest.
7
The source code is the code written to control the
functioning of computer software.
7
In June, 2010, the defendants in the consolidated cases
filed a joint motion in limine to exclude the Alcotest results
in each defendant's case as scientifically unreliable
under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),
and Lanigan, 419 Mass. 15, and sought a hearing concerning the
Alcotest's reliability in connection with the motion. The
defendants filed expert affidavits and reports contending that
the Alcotest's source code contained thousands of errors, some
of which could result in the production of unreliable results.
The defendants also asserted, through the supporting affidavits
and motions they had filed, that the Alcotest's results are
unreliable because the device does not test exclusively for
ethanol, the calibration tests performed do not operate to
validate the accuracy of the Alcotest, and the Alcotest is based
on an obsolete understanding of respiratory physiology. 8 In
support of its opposition to the defendants' motion, the
Commonwealth filed affidavits and reports concerning the
Alcotest's functioning and ability to accurately measure BAC.
The motion judge denied the defendants' motion to exclude
the Alcotest results as unreliable and declined to hold any
8
The defendant does not pursue on appeal the claim that the
Alcotest relies on an outmoded understanding of respiratory
physiology.
8
hearing on the motion, reasoning that a Daubert-Lanigan hearing 9
is inapplicable to the admissibility of the Alcotest results
because they are admissible by statute. See G. L. c. 90, §§ 24
(1) (e), 24K. The judge noted secondarily that, even if he were
to consider the Alcotest's reliability, he was persuaded that a
decision of the New Jersey Supreme Court, State v. Chun, 194
N.J. 54, cert. denied, 555 U.S. 825 (2008), effectively had
concluded that the alleged defects in the Alcotest's source code
did not render unreliable the Alcotest machines used in
Massachusetts. The judge did not address the defendants'
argument that the Alcotest produces unreliable results in light
of its failure to test a subject's breath solely for ethanol.
The defendants moved for reconsideration, arguing that the
admission of the Alcotest results without a hearing violated
their constitutional rights to due process. The judge denied
this motion, reasoning that the issues raised by the defendants
9
A hearing pursuant to Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993), and Commonwealth v. Lanigan, 419
Mass. 15 (1994), focuses on whether "the process or theory
underlying a scientific expert's opinion lacks reliability" such
that the opinion "should not reach the trier of fact." Id. at
26. The "party seeking to introduce scientific evidence may lay
an adequate foundation either by establishing general acceptance
in the scientific community or by showing that the evidence is
reliable or valid through an alternate means." Canavan's Case,
432 Mass. 304, 310 (2000). The Daubert inquiry, however,
"applies not only to testimony based on 'scientific' knowledge,
but also to testimony based on 'technical' and 'other
specialized' knowledge." Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 141 (1999).
9
went to the weight, rather than the admissibility, of the
Alcotest breath test results. Thereafter, the defendants filed
a petition pursuant to G. L. c. 211, § 3, challenging the denial
of the motion to exclude the Alcotest results; a single justice
of this court denied relief.
The defendant's case was tried in the Ayer District Court
before a jury and a judge other than the motion judge. During
the trial, the defense presented no evidence on the reliability
of the Alcotest or its breath test results (see note 5, supra).
The jury found the defendant guilty of operating a motor vehicle
with a blood alcohol percentage of 0.08 or greater as well as of
operating a motor vehicle while under the influence of liquor.
See G. L. c. 90, § 24 (1) (a) (1). 10 The defendant pleaded
guilty to the second offense portion of the complaint, and
thereafter was sentenced to six months in a house of correction,
suspended until January, 2015. The defendant appealed, and we
granted his application for direct appellate review.
Discussion. The defendant's overarching claim on appeal is
that the motion judge abused his discretion, and committed an
10
General Laws c. 90, § 24 (1) (a) (1), first par.,
provides in relevant part: "Whoever, upon any way or in any
place to which the public has a right of access, or upon any way
or in any place to which members of the public have access as
invitees or licensees, operates a motor vehicle with a
percentage, by weight, of alcohol in their blood of eight one-
hundredths or greater, or while under the influence of
intoxicating liquor," shall be punished by a fine, imprisonment,
or both.
10
error of law, by declining to hold a hearing on the reliability
of the Alcotest. The defendant divides this argument into two
parts. First, he argues that the Alcotest's design is not based
on infrared technology and, therefore, that an Alcotest result
is not admissible under G. L. c. 90, §§ 24 (1) (e) and 24K. We
interpret his argument as asserting, at the very least, that a
hearing was needed to determine the status of the Alcotest as an
"infrared breath-testing device" as required by G. L. c. 90,
§ 24K. In the alternative, the defendant contends that even if
the Alcotest is an infrared device such that its results are
admissible by statute, the motion judge erred by failing to
assess the Alcotest's reliability and admitting the defendant's
Alcotest breath test result in evidence at trial because the
Alcotest is a "new generation" breathalyzer using methods of
measuring alcohol in a subject's breath different from previous
machines that have been reviewed by our courts, and the
Alcotest's flawed source code, its inability to test exclusively
for ethanol, and the fact that its calibration test does not
adequately measure the reliability of the device render the
Alcotest unreliable. 11 Finally, the defendant claims that the
admission of the (in his view) unreliable Alcotest result
11
The defendant further argues that the New Jersey Supreme
Court's decision in State v. Chun, 194 N.J. 54, cert. denied,
555 U.S. 825 (2008), did not address the flaws that he raises
with respect to the Alcotest's reliability.
11
without an assessment of its reliability violated his right to
due process under art. 12 of the Massachusetts Declaration of
Rights and the Fourteenth Amendment to the United States
Constitution. We agree with the defendant that his challenge is
to a new breathalyzer technology and is not insulated from
challenge on grounds of reliability by virtue of G. L. c. 90,
§§ 24 (1) (e) and 24K. The defendant was entitled to raise a
reliability challenge to the Alcotest, and in the circumstances
of this case, was entitled to a so-called Daubert-Lanigan
hearing with respect to at least some of the issues he raised. 12
1. Statutory admissibility of Alcotest result. The
defendant first contends that the motion judge erred by failing
to hold a hearing on the Alcotest's reliability given that, he
asserts, the Alcotest "is not an infrared breath test," and
therefore is not admissible under the governing statutes.
General Laws c. 90, § 24 (1) (e), provides that in any OUI
prosecution, "evidence of the percentage, by weight, of alcohol
in the defendant's blood at the time of the alleged offense, as
shown by . . . a chemical test or analysis of his breath, shall
12
We find no merit in the Commonwealth's argument that the
defendant failed to preserve his challenge to the Alcotest's
reliability by neglecting to object to the admission of his
Alcotest result or to raise the issue of the Alcotest's
reliability at trial. As indicated previously, the defendant
did object at trial to the admission of his Alcotest result, and
he objected to the admission of a record of a periodic test of
the Alcotest on the specific ground that the Alcotest result was
unreliable.
12
be admissible and deemed relevant to the determination of the
question of whether such defendant was at such time under the
influence of intoxicating liquor." Despite this broad language,
the relevant statutes condition the evidentiary admission of
breath test results on satisfaction of certain requirements. Of
relevance here is the requirement that a certified operator
perform the breath test "using infrared breath-testing devices"
according to methods approved by the Secretary of Public Safety
(Secretary) in accordance with regulations promulgated by the
Secretary. G. L. c. 90, § 24K. 13,14
13
General Laws c. 90, § 24K, provides in relevant part:
"Chemical analysis of the breath of a person charged
with a violation of this chapter shall not be considered
valid under the provisions of this chapter, unless such
analysis has been performed by a certified operator, using
infrared breath-testing devices according to methods
approved by the secretary of public safety. The secretary
of public safety shall promulgate rules and regulations
regarding satisfactory methods, techniques and criteria for
the conduct of such tests, and shall establish a statewide
training and certification program for all operators of
such devices and a periodic certification program for such
breath testing devices; provided, however, that the
secretary may terminate or revoke such certification at his
discretion.
"Said regulations shall include, but shall not be
limited to the following: (a) that the chemical analysis
of the breath of a person charged be performed by a
certified operator using a certified infrared breath-
testing device in the following sequence: (1) one adequate
breath sample analysis; (2) one calibration standard
analysis; (3) a second adequate breath sample analysis; (b)
that no person shall perform such a test unless certified
by the secretary of public safety; (c) that no breath
13
Under these regulations, a breath test is admissible if, in
addition to being conducted by a certified operator, it is
administered using a "certified breath-testing device." 501
Code Mass. Regs. § 2.03 (2006). 15 OAT is responsible for keeping
a list of approved breath test devices, 501 Code Mass. Regs.
§ 2.38 (2006), and for certifying individual breath test devices
annually. 501 Code Mass. Regs. §§ 2.39-2.40 (2006). The
regulations specify that approved devices must appear on the
National Highway Traffic Safety Administration (NHTSA) list of
conforming products, 16 501 Code Mass. Regs. § 2.38, and reinforce
that the device must use "infrared breath testing technology."
501 Code Mass. Regs. § 2.38(5).
testing device, mouthpiece or tube shall be cleaned with
any substance containing alcohol."
14
There are other statutory conditions that must be
satisfied for admission, set out in G. L. c. 90, § 24 (1) (e):
a breath test may only be performed with the defendant's
consent; the test results must be made available to the
defendant at his or her request; and the defendant must be
"afforded a reasonable opportunity, at his request and at his
expense, to have another such test or analysis made by a person
or physician selected by him." The defendant does not suggest
that these conditions were not met in the present case.
15
We cite to the regulations as they appeared when the
defendant's offense occurred. See 501 Code Mass. Regs. §§ 2.00
(2006).
16
The Alcotest appeared on this list at the time of the
defendant's offense.
14
The Alcotest uses an infrared light source as well as a
detector of infrared light to measure BAC. 17 If a subject's
breath containing alcohol enters the Alcotest's chamber, the
alcohol molecules absorb some of the infrared light from the
source and, consequently, this portion of the infrared light
does not reach the detector. The Alcotest then determines the
subject's BAC based on the amount of infrared light that reaches
the detector as compared to the amount of such light originally
emitted from the source. In addition to the infrared mechanism,
however, the Alcotest contains a separate testing mechanism, an
electrochemical fuel cell (fuel cell), that creates an electric
current in the presence of alcohol. 18 For the Alcotest to
produce an actual breath test result, the infrared and fuel cell
readings must be in "tight agreement" with one another; if the
two readings are not in agreement, the test aborts. The
17
Infrared radiation comprises the portion of the
electromagnetic spectrum that begins with wavelengths directly
above the visible spectrum. Different molecules absorb infrared
radiation differently. See Smythe, 23 Mass. App. Ct. at 350 n.1
(scientific basis "underlying infrared analysis of substances
derives from" principle according to which "molecules absorb
electromagnetic radiation, and only radiation of certain
wavelengths will be absorbed by a molecule of any given
compound").
18
Electrodes that comprise the electrochemical fuel cell
(fuel cell) oxidize the alcohol in a subject's breath sample,
creating an electric current. The fuel cell's sensors then
measure the extent of the electric current, which is
proportional to the sample's alcohol content.
15
defendant contends, therefore, that the Alcotest is not an
"infrared breath-testing device" within the meaning of § 24K and
the corresponding regulations because the infrared portion of
the machine does not alone control whether the machine produces
a valid measurement of BAC.
We disagree. Section 24K requires chemical analyses of
breath to be performed using an infrared breath-testing device
"according to methods approved by the" Secretary, as set out in
the Secretary's regulations. As previously indicated, the
regulations, in turn, require that any device be approved by
NHTSA, which the Alcotest is, and use "infrared breath testing
technology" to measure BAC, which the Alcotest does. That the
Alcotest also employs the fuel cell to ensure the accuracy of
the infrared measurement does not change the fact that it uses
the required infrared technology. 19 Moreover, in Massachusetts
the Alcotest's infrared reading, rather than the fuel cell
reading, is the only measurement used to report a subject's BAC
when a valid test occurs. This aspect of the defendant's
challenge to the Alcotest fails.
19
The defendant points to no statutory or regulatory
requirement in effect at the time of his offense indicating that
a breath test device was required exclusively to use infrared
technology. In fact, two years after the defendant's arrest the
Secretary of Public Safety clarified the infrared requirement by
stating expressly that it does not bar the use of "complementary
technologies" to safeguard the accuracy of testing. 501 Code
Mass. Regs. § 2.05(4) (2010).
16
The motion judge concluded, and the Commonwealth argues
here, that where a breath-testing device meets the requirements
of §§ 24 (1) (e) and 24K, and applicable regulations, a Daubert-
Lanigan inquiry into the reliability of the device is neither
necessary nor appropriate because the Legislature has expressly
deemed evidence of a breath test conducted through use of such a
device admissible. The defendant contends, however, that even
if his breath test result is deemed admissible under the
statute, and even though the scientific principle underlying the
breathalyzer's premise may be generally accepted, 20 the Alcotest
presents a new methodology that is not immune from challenge as
to the scientific and technological reliability of the process
by which it measures and analyzes the quantity of alcohol in a
person's breath and, as a consequence, the reliability of the
breath test results that are offered in evidence. Accordingly,
he argues, the judge erred in declining to conduct a hearing to
assess the Alcotest's reliability.
The defendant's position has merit. It has long been the
case that where "evidence produced by a scientific theory or
20
The scientific principle underlying a breathalyzer, known
as Henry's Law, is the following: "at any given temperature,
the ratio between the concentration of alcohol in one's blood
and that in the alveolar air in the lungs is a constant:
2,100:1." Smythe, 23 Mass. App. Ct. at 350 (citation omitted).
See note 3, supra.
17
process" 21 is at issue, the judge plays an important gatekeeper
role to evaluate and decide on its reliability as a threshold
matter of admissibility. See Lanigan, 419 Mass. at 25-26. See
also Commonwealth v. Shanley, 455 Mass. 752, 761 (2010) ("the
judge must make a preliminary assessment whether the theory or
methodology underlying the proposed testimony is sufficiently
reliable to reach the trier of fact"). The Alcotest is the
first "dual-sensoric" breath test machine that analyzes a
subject's breath by means of an infrared test and a fuel cell
test, and neither this court nor the Appeals Court has
considered the reliability of its source code. We recognize
that the "Legislature doubtless has the power to prescribe the
rules of evidence and the methods of proof to be employed in
trials in court." Meunier's Case, 319 Mass. 421, 425 (1946).
But the power to do so does not mean that the reliability of
every type of evidence the Legislature may deem admissible,
particularly in a criminal case, is automatically insulated from
challenge and review on reliability grounds. Cf. Commonwealth
v. Given, 441 Mass. 741, 742, 746-747 & n.9, cert. denied, 543
U.S. 948 (2004) (discussing admissibility, at commitment trial
of person accused of being sexually dangerous, of police report
-- made admissible by statute -- containing hearsay evidence of
prior offense: "Unlike the confrontation clause, due process
21
Commonwealth v. Curnin, 409 Mass. 218, 222 (1991).
18
demands that evidence be reliable in substance, not that its
reliability be evaluated in a particular manner. That the focus
on reliability may not accommodate a simple, predictable,
bright-line rule does not alter the fact that reliability, not
cross-examination, is the due process touchstone" [quotations
and citations omitted]). 22 Indeed, this court has indicated just
the opposite in a case that dealt with a different type of
breathalyzer device.
In Commonwealth v. Neal, 392 Mass. 1, 14, 18-19 (1984), we
held that the admissibility of test results, produced by a
particular model of breathalyzer, the Smith & Wesson Model 900A,
that had been discovered to be vulnerable to radio frequency
interference (RFI) that could result in inaccurate readings,
required "a demonstration to the judge of the accuracy of the
22
We disagree with the Commonwealth that the case of
Commonwealth v. Bradway, 62 Mass. App. Ct. 280 (2004), should
control the outcome here. That case considered whether a judge
was required to conduct a Daubert-Lanigan analysis of the
reliability of testimony to be presented by qualified examiners,
whose reports of and testimony about their examination,
diagnosis, and opinions of a person accused of being sexually
dangerous are made admissible by statute. See Bradway, supra at
283-284, 286; G. L. c. 123A, § 14 (c). The Appeals Court
concluded that requiring such a threshold judicial evaluation of
the reliability of a qualified examiner's opinion testimony in
every case would improperly "dismantle the statutory framework."
Bradway, supra at 289. Opinion testimony by a trained
psychiatrist or psychologist concerning his or her evaluation
and diagnosis of an individual's mental state and possible
sexual dangerousness is a type of evidence that is grounded in
recognized theories and principles and has long been deemed
admissible. See, e.g., id. at 288 n.12.
19
particular [breathalyzer] unit at the time the test was
performed." The defendant in Neal did not challenge that the
principles underlying breath testing machines were generally
accepted by the scientific community, but instead argued that
the discovery of that model's "susceptibility to RFI require[d]
reconsideration of the admissibility of examination results"
from the device. Id. at 17. Although § 24 (1) (e) at the time
provided that breath test evidence was admissible and relevant
to the issue of a defendant's operation of a motor vehicle while
under the influence, see id. at 17 n.17, the court still
directed that the Commonwealth must establish the reliability of
the particular breath test in each case, in light of evidence
that cast doubt on its accuracy. Id. at 18-19. 23
23
The Commonwealth contends that Commonwealth v. Neal, 392
Mass. 1 (1984), is inapposite because it was decided before the
enactment of G. L. c. 90, § 24K, and regulations related to the
maintenance and certification of breathalyzers and the lack of
oversight of the device forced the court in Neal to demand proof
that a particular breathalyzer was functioning appropriately at
the time of a defendant's breath test. The Commonwealth argues
that by the time of the defendant's offense in this case,
however, the statutory and regulatory framework ensured that the
Alcotest's results were reliable. The argument is not
persuasive. In its detailed consideration of the defendant's
challenge to the scientific reliability of the breathalyzer at
issue in Neal, the court never suggested that it was obliged to
undertake this analysis of the merits of the challenge because
the Legislature had failed to institute a certification and
maintenance regime for such devices. Rather, the court's
analysis was premised on the recognition that breath test
evidence, admissible by statute, plays a significant role in a
prosecution for operating a motor vehicle while under the
influence of liquor, and due process principles require that a
20
The Chief Justice of the District Court assigned the
defendant's case and others to the motion judge for resolution
of common issues concerning at least the reliability of the
Alcotest's source code, and specifically authorized the motion
judge to conduct hearings to that end. As stated, we recognize
"the reliability of the scientific principles underlying the use
of breathalyzer evidence." Commonwealth v. Durning, 406 Mass.
485, 490 (1990). In the circumstances here, however, where the
applicable statutes and regulations do not provide specific
standards relating to the source code of breathalyzers, 24 and
existing case law offers no guidance about the reliability of
the Alcotest's methodology for measuring and analyzing the
quantity of alcohol in a person's breath, the judge should have
held a hearing to determine whether the source code and other
challenged features of the Alcotest functioned in a manner that
reliably produced accurate breath test results. See Shanley,
455 Mass. at 763 n.15 (although Daubert-Lanigan hearing "may not
always be required where qualified expert testimony of the same
defendant have the opportunity to challenge its accuracy and
scientific reliability. See id. at 8, 17-20. Here, none of the
statutory or regulatory requirements that currently govern
breath test results relates to the aspects of the Alcotest's
design and operation that the defendant challenges.
24
The National Highway Traffic Safety Administration
(NHTSA), on whose list of conforming products the Alcotest was
required to appear for use in Massachusetts, see 501 Code Mass.
Regs. § 2.38 (2006), does not analyze a breathalyzer's source
code when determining whether it conforms to NHTSA's standards.
21
type and offered for the same purpose has been accepted as
reliable in the past in Massachusetts appellate cases," this
court has "not 'grandfathered' any particular theories or
methods for all time"). 25
2. Reliability of Alcotest breath test results. Given the
motion judge's disposition of the defendant's motion in limine,
he did not consider on their merits the defendant's specific
challenges to the Alcotest's reliability, supported by and
described in the expert witness affidavits and articles
submitted by the defendant in support of his motion. This was
error. The defendant was entitled to have the merits of his
challenges considered and the reliability of the Alcotest breath
test result established before the evidence of that test result
could be admitted in evidence against him. See Commonwealth
v. Sands, 424 Mass. 184, 188 (1997).
The question remains whether, despite the fact that the
motion judge did not consider the merits of the defendant's
challenges, the present record clearly establishes the
25
The judge's second reason for declining to hold a hearing
was that the New Jersey Supreme Court, in Chun, 194 N.J. 54,
already had considered and rejected a challenge to the
reliability of the Alcotest. Although the court in Chun did
address the reliability of the Alcotest and of its source code
in particular, see id. at 75, 121-131, it did not address all of
the challenges the defendant in this case raises to the
Alcotest's reliability. For example, the court in Chun did not
consider whether the Alcotest tests exclusively for ethanol or
whether the Alcotest's calibration system fails to adequately
measure the reliability of the device.
22
reliability of the Alcotest. We have carefully reviewed the
defendant's submissions and the corresponding materials
submitted by the Commonwealth in opposition to the defendant's
motion in limine; we also have reviewed the New Jersey Supreme
Court's decision in Chun, 194 N.J. 54. The review leads us to
conclude that on the paper record before us, without a hearing,
it is not possible to determine that the defendant's challenges
have no substantial basis and do not implicate the reliability
of the Alcotest breath test evidence. For this reason, we
conclude that it is appropriate to vacate the judge's order
denying the defendant's motion to exclude the Alcotest breath
test evidence and remand this case to the District Court for the
purpose of conducting such a hearing. Cf. Commonwealth v. A
Juvenile, 381 Mass. 727, 729 (1980) (remanding case to Juvenile
Court for hearing on admissibility, on reliability grounds, of
hypnotically aided testimony).
On remand, a hearing on the Alcotest's reliability will be
necessary. In that connection, we add the following comments.
a. The primary reliability challenge raised by the
defendant below was to the Alcotest source code. In support of
the motion in limine, the defendant retained a software
engineer, Joel Cohen, to analyze the source code. As stated in
his affidavit, Cohen used an "industry standard code analysis
tool" referred to as LINT, which revealed more than 7,000 errors
23
and 3,000 warning signals upon scanning the Alcotest's source
code. However, according to the report of Daniel Hestad, a
source code analyst retained by the Commonwealth, scanning tools
such as LINT, alone, are not conclusive as to errors within the
source code because they are known to produce falsely positive
results, and even a true error may not result in flawed software
functionality due to the defect's location in the code. Hestad
also noted that it is to be expected that a source code as
extensive as the Alcotest's would contain defects and coding
errors. Cohen's analysis focused on one particular category of
significant error in the source code: uninitialized variables.
Hestad agreed that the use of uninitialized variables in the
Alcotest's source code was an "unsafe coding practice." He
opined, however, that uninitialized variables did not appear in
portions of the code that bear directly on the Alcotest's
measurement of a subject's BAC, and that the Alcotest's
requirement that a certified operator manually reset the device
so as to remove values from previous tests suggests that it is
"very unlikely" that an uninitialized variable would affect a
BAC computation. It may be that Hestad's opinion -- and the
fact that Cohen did not point to a specific instance in which an
uninitialized variable or other error would, with any degree of
certainty, cause an unreliable BAC measurement -- will carry the
day, and result in the rejection of the defendant's challenge to
24
the Alcotest source code. See Neal, 392 Mass. at 21 (this court
does "not require a demonstration of infallibility as a
precondition to consideration of scientific evidence by a trier
of fact"). But we are not able to assess the validity of the
two experts' differing views on the basis of their competing
affidavits alone, which underscores the value that a hearing
would provide, and likely an evidentiary hearing. 26
b. The defendant also claims that the Alcotest is not
capable of testing exclusively for ethanol, which would or might
render its breath test results invalid. Donald J. Barry, Ph.D.,
an astronomer with a background in chemistry who was retained by
the defendant, opined in an affidavit that the Alcotest is
"sensitive" to the ethanol content of a subject's breath, but
incapable of testing exclusively for ethanol. He reasoned that
the design of the Alcotest's infrared mechanism, which operates
at a 9.5 micron wavelength to absorb alcohol, may result in an
inability to accurately measure compounds "which absorb
26
A hearing pursuant to Daubert and Lanigan need not always
be an evidentiary hearing. See Palandjian v. Foster, 446 Mass.
100, 111 (2006); Commonwealth v. Addy, 79 Mass. App. Ct. 835,
838 (2011). In a case where the documentary record, in
conjunction with the arguments of the parties, allows for a
reasoned determination of the evidence's reliability, an
evidentiary hearing may not be necessary. Cf. Vassallo v.
Baxter Healthcare Corp., 428 Mass. 1, 8-9, 12 (1998). As stated
previously, our review of the affidavits and other materials in
the record suggests that an evidentiary hearing is likely
necessary in this case, but we leave the decision whether to
hold one to the District Court judge on remand.
25
[infrared radiation] at 9.5 microns but not at adjacent
wavelengths"; he notes that all "compounds with a carbon-oxygen
bond display an infrared absorption in the 8-10 micron region"
and, accordingly, methanol and ethanol absorb infrared radiation
in this range, as do "acetone, acetic acid, acetaldehyde, ethyl
acetate," and others. In short, Barry asserted, the Alcotest's
infrared testing design "cannot be used to distinguish between a
detection of ethanol and interfering substances," and that the
Alcotest's fuel cell is incapable of measuring ethanol to the
exclusion of interfering substances.
The Commonwealth counters that the applicable statutes and
regulations do not explicitly require that a breathalyzer must
test solely for ethanol. It is true that G. L. c. 90, § 24 (1)
(e), deems generally admissible breath test evidence "of the
percentage, by weight, of alcohol in the defendant's blood at
the time of the alleged offense" (emphasis added). However, we
are hard pressed to conclude that the Legislature intended
breathalyzers to test for substances other than ethanol.
"Alcohol" is generally defined as "ethanol." See Webster's
Third New International Dictionary 50 (2002) ("alcohol" is also
called "ethanol"); American Heritage Dictionary of the English
Language 41 (2006) (same). Cf. Commonwealth v. Smythe, 23 Mass.
App. Ct. 348, 350 (1987) (describing different breathalyzer as
being "designed to measure ethyl alcohol in the breath").
26
The Commonwealth also argues that the Alcotest does test
exclusively for ethanol, but the evidence in the record is
unconvincing on this front. The affidavit of Hansueli Ryser, a
vice-president of Draeger, notes that infrared breathalyzers
typically operate at wavelengths of 3.4 or 9.5 microns so that
the radiation is absorbed by alcohol, and that the Alcotest's
"9.5 micron wavelength is either non-susceptible to interfering
substances or susceptible at only a fraction of what it is at
3.4 microns." Ryser then states:
"I agree that the [infrared] system, by itself, is not
specific to ethanol. I also agree that the [fuel
cell] is not specific to ethanol. However, the
[Alcotest] is the only dual-sensoric breath testing
device combining both analytical technologies in one
instrument where both sensors analyze the same breath
specimen. The [fuel cell] and [infrared] readings
must be within tight agreement with each other.
Otherwise the device flags the test as being tainted
by an interfering substance and the test aborts.
Thus, the [Alcotest] as a whole is ethanol specific."
The logical leap that Ryser makes from the infrared system and
fuel cell each not testing specifically for ethanol to the
system as a whole being ethanol-specific is confusing, to say
the least. While there may be a reasonable scientific
explanation for why Ryser's position is accurate, such an
explanation is not apparent in the record. On remand, a judge
should consider whether the Alcotest is sufficiently ethanol-
specific such that its results are reliably untainted by
interfering substances.
27
c. The defendant contends that the Alcotest's calibration
testing mechanism does not indicate adequately the Alcotest's
ability to measure accurately an actual subject's BAC. A report
concerning the Alcotest's source code submitted as part of the
defendant's evidentiary support for his motion in limine
suggests that even though the Alcotest performs a calibration
test against a solution with known alcohol content in the course
of analyzing a subject's breath, such a calibration test does
not assist in determining whether the Alcotest accurately
assesses the subject's BAC because the Alcotest's source code
"takes completely different paths (executes different
instructions) for the calibration measurement than when it
measures the subject's breath." This is of relevance because
G. L. c. 90, § 24K, requires that a "'calibration standard
analysis[]' be performed" prior to the administration of a
breathalyzer test "in order for [the] test to be valid." Morris
v. Commonwealth, 412 Mass. 861, 863 n.3 (1992). "These
simulations, using solutions with a known alcohol content, are
designed to test the accuracy of the breathalyzer unit." Id.
The assertion in the defendant's report, which the Commonwealth
did not rebut in its submission to the District Court or on
appeal, suggests that the Alcotest's source code renders its
calibration measurement ineffective to "test the accuracy" of
28
the Alcotest. Accordingly, this challenge must be resolved on
remand. 27
Conclusion. The order denying the defendant's motion to
exclude evidence of the defendant's Alcotest breath test result
is vacated, and the case is remanded to the District Court for
further proceedings consistent with this opinion. In
particular, a judge of the District Court is to conduct a
hearing on the defendant's motion to exclude, and is to file
with this court the judge's findings and rulings based on that
hearing within ninety days of the date of the rescript.
So ordered.
27
The Commonwealth argues on appeal that testing of the
Alcotest conducted by the Commonwealth's office of alcohol
testing (OAT) in the course of this litigation establishes that
the device accurately measures BAC. OAT's testing consisted
primarily of the Alcotest analyzing samples with differing known
alcohol content; a sequence consisted of "two breath samples and
the analysis of a calibration standard." The results of the
testing sequences of each sample of known alcohol content appear
to show that the Alcotest accurately measured the calibration
standard in each sequence while also generally measuring the
alcohol content of each sample accurately. As part of the
testing, OAT also dosed a volunteer with three alcoholic
beverages, tested her BAC with the Alcotest and through a blood
test, and found the results of each test to substantially agree
(if anything, the breath test was lower). However, given the
defendant's assertion that the Alcotest's source code renders
its calibration test ineffective toward determining whether the
Alcotest reliably measures a subject's BAC, we are reluctant to
rely on OAT's testing to resolve the defendant's challenge
regarding the calibration mechanism without a better
understanding than the present record permits us to gain.