The Machine Doesn’t Work and It Doesn’t Report Simulator Calibration Errors

Pending before the Massachusetts Appeals Court is the case Commonwealth v. Cormier, et al, where the issue is the Massachusetts Office of Alcohol Testing’s failure to “create and maintain” a Breath Test Operator’s Manual for the Draeger Alcotest 9510. See 501 C.M.R. 501 2.04 Responsibilities of the Office of Alcohol Testing. This latest version of breath testing equipment was put into place over a period of the last five (5) years in all State and Municipal Police Departments by the Office of Alcohol testing. The last device, the Draeger Alcotest 7410, was, according to OAT own rules, accompanied with a Breath Test Operator’s manual for each and every police officer that was trained and certified to operate the machine for purposes of Operating Under the Influence (OUI) arrests and prosecutions with breath test evidence, commonly called a “per se” Offense. The result, Operators were trained how the machine works and how to properly operate the device, including recognition of error messages. At least they received a manual which set forth the proper training. The new machine? No manual from OAT, but you might get a copy of a power point presentation for the 9510, with reference to the manual for the old machine as a supplement to the power point presentation. How do you know what was said about each slide at a power point presentation? As a defense lawyer you used the Operator’s manual to learn how the machine is supposed to work and how an operator is to conduct a proper, valid test. You cannot prepare the cross examination of the breath test operator without the Operator manual he was trained with.

Now it has come to light that OAT has known for several months, if not longer, that the Draeger Alcotest 9510 has a demonstrated and well documented history of not working properly and not reporting errors. Each Draeger 9510 is equipped with an attached Dry Gas simulator standard at 0.08. This ethanol infused gas mixture, created by a laboratory, is used as a “standard” for the machine to calibrate itself with. In Massachusetts the machine must read the Gas Simulator Standard of 0.08 at +/- .005, reporting simulator checks between .074-.086, if a test is to be considered valid. When this does not happen the machine is required to report the simulator reading error and abort the test. See 501 C.M.R. 2.11 (3) Calibration Standards. It means the machine cannot accurately recognize the actual amount of alcohol present in any subject sample. If it can’t read a simulator standard correctly and accurately how can it be relied upon to extrapolate human blood alcohol content from a human breath sample?

According to recent disclosures, not only does the machine not recognize simulator results outside of the allowable range, it allows the evidentiary breath test against an arrested driver to go forward without notifying the Operator (Police) of the error. The machine does not work properly and it does not report the simulator error. The initial memorandum from OAT, dated March 9, 2015 to the Commonwealth’s District Attorneys cited five (5) known cases. District Attorneys in Essex and Barnstable County will not offer breath test evidence from the Draeger 9510 until further notice. Middlesex DA Marian Ryan joined in suspending her Office’s use of breath test evidence for OUI prosecutions in Middlesex County, citing knowledge of “fewer than a dozen,” similar cases in Middlesex County. The recent revelation calls into question all reported breath test results in Massachusetts on the Draeger Alcotest 9510, past, present and future.

Trial by machine is a dangerous game. It is an inherently and constitutionally unfair game when the Government utilizes faulty equipment, knows about of the defect for months or more, and fails to give full, complete, and timely disclosure to the accused and their counsel. The machine is the trial in a per se criminal offense in Massachusetts. That is what a per se (.08) criminal offense is. Standing alone, the breath test evidence, can and often does, result in a guilty finding with lifetime effect under Melanie’s Law. The prosecutor only need show a valid breath test of .08 or higher at or near the time of driving to obtain a conviction. The arresting officer and breath test operator hide behind “I just push the buttons, Counsel.” And the prosecutors closing arguments goe like this, “The machine works, it is tested, calibrated, and certified by OAT to convert a breath result into a true and accurate blood alcohol content at the time of driving.” That was the closing argument of every Prosecutor in Massachusetts until this past week. We should demand more from police, prosecutors, OAT and Draeger, before we allow Trial by Machine with the Government Breath Box.