Your OUI case involving a reported breath test result is stayed, or temporarily placed on hold, along with hundreds of other similar cases throughout Massachusetts, as a result of the Supreme Judicial Court’s decision in Commonwealth v. Camblin, 471 Mass. 639 (2015), dated June 12, 2015.
As a result of this case, the Executive Office of the Trial Court consolidated for a single proceeding, all breath test cases involving the Draeger Alcotest 9510 breath test machine where the defendant raised a challenge to the scientific reliability of the breath test device. I made the challenge in all of my current breath test cases. The single Judge (Honorable Robert Brennan) will hold hearings at the Concord District Court for consolidated cases from across the entire Commonwealth, now in excess of 500 defendants. (Copy of Scheduling Order for Consolidated Hearing Process attached as “Exhibit A”).
The purpose of the consolidated hearing process is to allow for one Judge to rule on relevant discovery requests and then conduct a single Daubert/Lanigan hearing with expert witnesses testifying for both sides. The Camblin decision allows the defendant in an OUI case to challenge the scientific reliability of the breath test device before the evidence is ruled admissible at trial. This challenge to scientific or novel evidence in Massachusetts is called a Daubbert/Lanigan hearing. At such a hearing, the burden is on the proponent of the new scientific evidence, the prosecution in our case, to prove the validity and general acceptance of the scientific opinion, theory, process or technology. (This type of hearing process takes place any time new scientific evidence is brought before Courts, for example DNA, fingerprint or trace evidence technology). Imagine the expense to the Prosecutors, Defendants and the Court system if such a hearing were conducted in every pending breath test case, over and over again. Although breath alcohol testing technology has been in use for decades, the SJC notes in the Camblindecision that the technology, processes, and software contained in the Draeger Alcotest 9510 have never been previously challenged in Massachusetts.
Specifically, the defense in the consolidated hearing process will challenge the scientific reliability of the machine’s software or source code, the calibration process and the machine’s specificity for alcohol, or its’ ability to identify and separate alcohol from all other volatiles on the human breath and in the ambient air. Included in this challenge will be discovery requests related to calibration failures identified by the Office of Alcohol Testing (OAT) and the Executive Office of Public Safety and Security (EOPSS) earlier this year and widely reported upon by the Boston Globe and other media outlets.
For the time being your case in the Court of Origin is stayed (Lowell, Ayer, Worcester, Woburn, Newburyport, Waltham, Plymouth, Dedham, Concord, Cambridge, Fitchburg, Fall River) and you do not need to appear until further Notice from my office. You can attend any hearings in the consolidated process at Concord District Court, but your attendance is not required. I expect the consolidated hearing process to stretch into early next year.
I look forward to a conclusion of this process that will allow for a better and stronger defense to your Operating Under the Influence of Liquor charge. Please contact my office if you have any questions or concerns.
Very Truly Yours,
Michael S. Bowser, Jr.
