In response to the challenge to alcohol breath test results involving the Alcotest 9510, a Massachusetts judge has recently ruled that the BAT results for yielded by this machine for the period between June 2012 and September 2014 are unreliable and inadmissible at trial. Results yielded after September 14, 2014, he further ruled, are admissible.
In Massachusetts, it is estimated that approximately 2,000 to 3,000 Drunk Driving or OUI/DUI cases were likely affected and/or waiting for the outcome of this decision. The Alcotest 9510 machine, which is manufactured by Draeger Safety Diagnostics, is an alcohol breath test machine that is used by hundreds, if not thousands, of police departments across the country.
The issues in the challenge to the breathalyzer machine was whether the source code in the Alcotest 9510 produces accurate results; whether the machine’s code in producing breathalyzer ratios is accurate; whether the machine’s methodology produced unreliable results; and whether the BAT machine’s source code has security flaws that would make is susceptible to manipulation, and consequently, unreliable results.
To understand these issues, you have to have some understanding on how this machine works…
The Alcotest 9510 breathalyzer machines uses dual sensor technology to determine the quantity of alcohol in a person’s breath. The machine works when a person blows air into its tube. The breath passes through a heated chamber where the breath is analyzed. A chemical reaction occurs in that chamber that measures the level of electrical signal produced by a chemical reaction, which is translated into the person’s alcohol content.
Ultimately, the court determined that the breathalyzer machine, the Alcotest 9510, produces scientifically reliable BAC results; its source code was reliable; and the blood-to-breath ratio to produce BAC results was “sound science”.
With regard to the methodology employed by the Massachusetts Office of Alcohol Testing, the court determine that the methodology employed from September 14, 2014 to the present produce scientifically reliable results.
However, the court further ruled that, for the period between June 2012 to September 14, 2014, the Office of Alcohol Testing’s methodology did not produce scientifically reliable BAC results.
While the challenge to the reliability of the breathalyzer machine’s results were being challenged, several thousand Massachusetts drunk driving cases where the machine was used were “stayed” or put on hold pending the outcome of this challenge. In the aftermath of the decision, it appears evidence of any breathalyzer results involving this machine during the period June 2012 through September 14, 2014 are being excluded or not used at trial.
For those OUI/DUI cases that had breathalyzer results involving this machine that was certified after September 14, 2014, the Commonwealth is still seeking to admit the breathalyzer evidence. Although defense experts will be conducting further reviews of the data, it is expected that judges in these cases will not be readily excluding the breathalyzer results.
So if you have an OUI/DUI case and submitted to a breathalyzer test, what should you do?
For starters, you should have an attorney who understands the complexities and nuances of drunk driving matters and breathalyzer issues, including the science, protocol and methodology. In some cases, you may also want to consider retaining a chemical expert who specializes in blood-alcohol content and has knowledge of the issues involving how BAT results are generated.
In Massachusetts, the law presumes that a person is operating under the influence of alcohol if he submitted to a breathalyzer and that yielded a reading of 0.08% or greater. Believe it or not, most people that blow a 0.08% or above just give up. They shouldn’t.
There are a wide variety of reasons why you may have blown a 0.08% or greater. Some factors could involve any medication that you may have been taking at the time; or, for instance, the actual timing between your last drink and the time when you submitted to the breath test. If, for example, you drink a beer or two and then immediately blow into a breath test machine, you will get a reading. But, it takes time for the alcohol to digest into your bloodstream. This means that, if you were to then take another breath test 30 minutes or an hour later, even though you stopped drinking, your BAT results would actual be higher on the second test.
So, if you were pulled over at 1:00 a.m., 20 minutes after your last drink; but you weren’t given a chance to take breathalyzer until 3:00 a.m. after you were arrested, the BAT results at 3:00 a.m. wouldn’t accurately represent your BAC level at the time you were operating the vehicle.
There are countless other issues that can come into play with any drunk driving case, including those involving breath test machines. Consult with an experienced attorney who knows what he’s doing and how to best represent you to afford you the best chance to beat your case.