Supreme Judicial Court of Massachusetts, Middlesex
Argued: February 5, 2015.
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.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[31 N.E.3d 1104] 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. 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, 641 N.E.2d 1342 (1994), and, in this case, a hearing on and substantive consideration of the defendant's challenges to that reliability were required. [31 N.E.3d 1105] Because no such hearing was held and the Alcotest breath test result of 0.16 was before the jury as evidence, we vacate the 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.
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.
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) was 0.16.
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. In February, 2008, approximately two months prior to the day of the 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" [31 N.E.3d 1106] 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.
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 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 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 ...