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State Highway Safety Showcase

Blood-Alcohol Breath Testing Device Challenge

Massachusetts Executive Office of Public Safety and Security, Highway Safety Division

In 2010, a group of defense attorneys in Massachusetts challenged the reliability of a widely used blood-alcohol breath testing device, the Draeger’s Alcotest 7110. These defense attorneys claimed that the blood-breath conversion ratio of this instrument, which is used by Massachusetts State Police and local law enforcement, fails to meet the general acceptance standard. This challenge put all cases charged under the per se provision of the operating under the influence of alcohol statute in Massachusetts at risk of acquittal. With federal funding from the Highway Safety Division of the Executive Office of Public Safety and Security (EOPSS), the Middlesex District Attorney’s Office (MDAO) worked to ensure these cases were not dismissed.

Draeger's Alcotest 7110
Draeger's Alcotest 7110

The same challenges to the breath test unit were surfacing in western Massachusetts Berkshire County and were likely to influence these types of cases in every county throughout the Commonwealth. Some of the defense attorneys had requested and received funding from the court to hire their own experts to review the source code. The MDAO had taken steps to apprise the judiciary of the pending cases and suggested that the administration of justice would be well served if all the cases are consolidated, or to select one case to proceed, while all others were put on hold pending the ultimate ruling. If the defense attorneys were successful, this could have had lasting effects on other states as well. In order for the MDAO to defend against this challenge on behalf of the Commonwealth, MDAO worked with an expert to analyze the source code and provide consultation for the trial.

MDAO engaged a leading independent provider of technical security and quality assessment, software risk analysis, and software risk mitigation, to conduct the source code review. The source code review was completed in July 2010 and a final written report was submitted to MDAO, which in turn was provided to the defense attorneys involved in the litigation and filed with the court. The judge determined that it was not necessary to hold an evidentiary hearing on the issues raised by the defendants because the results of the breath test are expressly made admissible by statute in Massachusetts, and that none of the alleged flaws in the Alcotest’s computer software source code undermine the overall reliability of the device. When a key case involving this legal theory went to trial in February 2012, the Commonwealth was successful. Had the results of this case been different, there would have been a strong possibility for additional challenges that, if successful, could have jeopardized the admissibility of breath test results in thousands of cases across the state, making the roads more dangerous for Massachusetts citizens.

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