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Breathalyzer Test Litigation Causing Delays In Prosecuting DUI Cases In Some States, Could Massachusetts Be Next?

Law enforcement in Florida uses a breath alcohol testing machine called the Intoxilyzer. The machine is developed by a company known as CMI Inc. Recently lawyers in Florida have asked judges to order the prosecution to disclose the software source code of the machines so that they can assess whether these machines are providing results that are accurate. While several judges in Florida and other states have ordered the disclosure of the proprietary coding CMI has refused to provide the requested information. The company has complained that such disclosure would give up “trade secrets”. The judges ordering disclosure however have stated that a defendant has the right to examine evidence in order to properly prepare for trial. The result has been a backlog of OUI cases in those counties where there has not been compliance with the judicial orders.

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Breathalyzer Manufacturer’s Refusal To Comply With Court Orders Likely To Compromise OUI Cases

Massachusetts uses the Alcotest 7110 Mark III-C breathalyzer test. The machine consists of a breath tube, a deep lung air monitor, a sample chamber and an infrared sensor. In 2007 the Alcotest 7110 was tested by Base One Technologies, Inc. after a court case involving the Alcotest manufacturer required it provide its code. The study revealed that the code contained several errors. Read about the study here. In Massachusetts however you rarely see challenges to breathalyzer machine results. The reason for this is simple. The cost of retaining an expert to examine and evaluate the machine and provide testimony to a jury is extreme. Very few people can afford this and they look to the alternative of pleading guilty or trying the case by relying on their lawyer’s cross-examination skills to attack the accuracy of the test. It is far easier to succeed in persuading a jury that a test is inaccurate with an expert than without one. I would expect to see a scientific challenge in Massachusetts to the Alcotest at some point in the future.


Attorney Stephen Neyman has defended hundreds of people accused of all types of crimes in Massachusetts and throughout the country including cases involving OUI and breathalyzer machines. We are prepared to defend anyone accused of Drunk Driving in Massachusetts. Call us now to discuss your case at 617-263-6800 or contact us online.