Writing for the Berkshire Eagle, Reporter Conor Berry has reporetd that in September, Judge Richard Sullivan of the Worcester District Court will hear testimony in a case being followed by DUI attorneys across Massachusetts. The case involves a Massachusetts DUI Lawyer’s request for the “source code” of the Draeger Alcotest 7110 MK III- C, the breathalyzer which all Massachusetts Police Departments use.
The source code is essentially the computer program used to operate the Draeger Alcotest breathalyzer. The computerized set of instructions which comprise the breathalyzer’s source code govern all aspects of breath alcohol testing and breathalyzer operation. If the source code is flawed, breathalyzer results may be excluded at drunk driving trials across Massachusetts. In the State of Florida, source code defects were found which resulted in the breathalyzer reporting results when it was not supposed to, because the breath sample was inadequate. Also, breath samples which should have been accepted were improperly rejected.
Draeger, the breathalyzer manufacturer, has been resistant to attempts to obtain the source code, claiming that it is proprietary and a “trade secret.” I’ve personally spoken to Draeger employees about the issue and they claim that even if the source code is ultimately released, it will be in a format which even the best Massachusetts DUI lawyers will not understand. According to the Berkshire Eagle, Draeger is now willing to release the source code to the Commonwealth of Massachusetts. A court order would force the state’s DUI prosecutors to turn the information over to Mass. DUI defense attorneys.
Obtaining and analyzing the breathalyzer source code could be a boon for Massachusetts DUI lawyers. Breathalyzer results often form the central piece of evidence in a DUI prosecution and these devices are not infallible. False positives can result from diabetes, exposure to paint thinners, and even being on the Atkins Diet. DUI defense lawyers are, therefore, rightfully seeking an opportunity to learn exactly how the electronic devices work by having an expert analyze the computer program which controls the machines. Source code discovery requests have been successful in Florida, Georgia and New Jersey. Hopefully, Massachusetts will soon be added to the list.
