Commonwealth v. Camblin

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SJC-11774

COMMONWEALTH vs. KIRK P. CAMBLIN.

Middlesex. February 5, 2015. - June 12, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.

Motor Vehicle, Operating under the influence. Evidence,
Breathalyzer test, Scientific test.

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.
 2

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. 1 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 (1994), and, in

this case, a hearing on and substantive consideration of the

defendant's challenges to that reliability were required.

Because no such hearing was held and the Alcotest breath test

result of 0.16 was before the jury as evidence, we vacate the

1
The defendant pleaded guilty to operating a motor vehicle
while under the influence of intoxicating liquor (OUI), second
or subsequent offense.
 3

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. 2

Facts. 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.

2
No hearing, evidentiary or otherwise, was held on the
motion to exclude the breathalyzer evidence. Our review of the
record on appeal suggests that an evidentiary hearing was likely
necessary, but we leave this issue to be determined on remand.
 4

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) 3 was

0.16. 4

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. 5 In

February, 2008, approximately two months prior to the day of the

3
Breath alcohol concentration is used to measure blood
alcohol content (BAC) based on "Henry's Law," which is a
principle stating that, at equilibrium, the concentration of
alcohol in an individual's blood is directly proportional to the
concentration of alcohol in the individual's breath. See
Commonwealth v. Smythe, 23 Mass. App. Ct. 348, 350 (1987).
4
State police Trooper Mark Roy testified at trial that
there was no indication the breathalyzer machine was not working
properly as he prepared the machine to administer the breath
test to the defendant.
5
By the time of trial in 2013, the State police had
discontinued use of the Alcotest 7110 MK III-C (Alcotest)
breathalyzer.
 5

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" 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. 6

Procedural background. 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

6
The defendant's sole challenge on appeal is to the
accuracy and reliability of the Alcotest's breath test result in
his case. The defendant challenged the Alcotest's reliability
in a pretrial motion in limine, but did not raise any specific
issue about the reliability of the test at trial. He did,
however, object to the admission of his breath test result and
admission of a record of the periodic test of the Alcotest
conducted days prior to his breath test.
 6

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 7 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 defendant received and examined the Alcotest's

source code.

In March, 2010, the Chief Justice of the District Court

specially assigned to a judge of that court the defendant's case

along with sixty-one other cases in which defendants charged

with OUI challenged the reliability of the Alcotest's source

code. Pursuant to her authority under G. L. c. 218, § 43A, the

Chief Justice authorized the specially assigned judge "to

conduct hearings or other proceedings arising in these cases,"

including hearings pertaining generally to the reliability of

the Alcotest.

7
The source code is the code written to control the
functioning of computer software.
 7

In June, 2010, the defendants in the consolidated cases

filed a joint motion in limine to exclude the Alcotest results

in each defendant's case as scientifically unreliable

under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),

and Lanigan, 419 Mass. 15, and sought a hearing concerning the

Alcotest's reliability in connection with the motion. The

defendants filed expert affidavits and reports contending that

the Alcotest's source code contained thousands of errors, some

of which could result in the production of unreliable results.

The defendants also asserted, through the supporting affidavits

and motions they had filed, that the Alcotest's results are

unreliable because the device does not test exclusively for

ethanol, the calibration tests performed do not operate to

validate the accuracy of the Alcotest, and the Alcotest is based

on an obsolete understanding of respiratory physiology. 8 In

support of its opposition to the defendants' motion, the

Commonwealth filed affidavits and reports concerning the

Alcotest's functioning and ability to accurately measure BAC.

The motion judge denied the defendants' motion to exclude

the Alcotest results as unreliable and declined to hold any

8
The defendant does not pursue on appeal the claim that the
Alcotest relies on an outmoded understanding of respiratory
physiology.
 8

hearing on the motion, reasoning that a Daubert-Lanigan hearing 9

is inapplicable to the admissibility of the Alcotest results

because they are admissible by statute. See G. L. c. 90, §§ 24

(1) (e), 24K. The judge noted secondarily that, even if he were

to consider the Alcotest's reliability, he was persuaded that a

decision of the New Jersey Supreme Court, State v. Chun, 194

N.J. 54, cert. denied, 555 U.S. 825 (2008), effectively had

concluded that the alleged defects in the Alcotest's source code

did not render unreliable the Alcotest machines used in

Massachusetts. The judge did not address the defendants'

argument that the Alcotest produces unreliable results in light

of its failure to test a subject's breath solely for ethanol.

The defendants moved for reconsideration, arguing that the

admission of the Alcotest results without a hearing violated

their constitutional rights to due process. The judge denied

this motion, reasoning that the issues raised by the defendants

9
A hearing pursuant to Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993), and Commonwealth v. Lanigan, 419
Mass. 15 (1994), focuses on whether "the process or theory
underlying a scientific expert's opinion lacks reliability" such
that the opinion "should not reach the trier of fact." Id. at
26. The "party seeking to introduce scientific evidence may lay
an adequate foundation either by establishing general acceptance
in the scientific community or by showing that the evidence is
reliable or valid through an alternate means." Canavan's Case,
432 Mass. 304, 310 (2000). The Daubert inquiry, however,
"applies not only to testimony based on 'scientific' knowledge,
but also to testimony based on 'technical' and 'other
specialized' knowledge." Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 141 (1999).
 9

went to the weight, rather than the admissibility, of the

Alcotest breath test results. Thereafter, the defendants filed

a petition pursuant to G. L. c. 211, § 3, challenging the denial

of the motion to exclude the Alcotest results; a single justice

of this court denied relief.

The defendant's case was tried in the Ayer District Court

before a jury and a judge other than the motion judge. During

the trial, the defense presented no evidence on the reliability

of the Alcotest or its breath test results (see note 5, supra).

The jury found the defendant guilty of operating a motor vehicle

with a blood alcohol percentage of 0.08 or greater as well as of

operating a motor vehicle while under the influence of liquor.

See G. L. c. 90, § 24 (1) (a) (1). 10 The defendant pleaded

guilty to the second offense portion of the complaint, and

thereafter was sentenced to six months in a house of correction,

suspended until January, 2015. The defendant appealed, and we

granted his application for direct appellate review.

Discussion. The defendant's overarching claim on appeal is

that the motion judge abused his discretion, and committed an

10
General Laws c. 90, § 24 (1) (a) (1), first par.,
provides in relevant part: "Whoever, upon any way or in any
place to which the public has a right of access, or upon any way
or in any place to which members of the public have access as
invitees or licensees, operates a motor vehicle with a
percentage, by weight, of alcohol in their blood of eight one-
hundredths or greater, or while under the influence of
intoxicating liquor," shall be punished by a fine, imprisonment,
or both.
 10

error of law, by declining to hold a hearing on the reliability

of the Alcotest. The defendant divides this argument into two

parts. First, he argues that the Alcotest's design is not based

on infrared technology and, therefore, that an Alcotest result

is not admissible under G. L. c. 90, §§ 24 (1) (e) and 24K. We

interpret his argument as asserting, at the very least, that a

hearing was needed to determine the status of the Alcotest as an

"infrared breath-testing device" as required by G. L. c. 90,

§ 24K. In the alternative, the defendant contends that even if

the Alcotest is an infrared device such that its results are

admissible by statute, the motion judge erred by failing to

assess the Alcotest's reliability and admitting the defendant's

Alcotest breath test result in evidence at trial because the

Alcotest is a "new generation" breathalyzer using methods of

measuring alcohol in a subject's breath different from previous

machines that have been reviewed by our courts, and the

Alcotest's flawed source code, its inability to test exclusively

for ethanol, and the fact that its calibration test does not

adequately measure the reliability of the device render the

Alcotest unreliable. 11 Finally, the defendant claims that the

admission of the (in his view) unreliable Alcotest result

11
The defendant further argues that the New Jersey Supreme
Court's decision in State v. Chun, 194 N.J. 54, cert. denied,
555 U.S. 825 (2008), did not address the flaws that he raises
with respect to the Alcotest's reliability.
 11

without an assessment of its reliability violated his right to

due process under art. 12 of the Massachusetts Declaration of

Rights and the Fourteenth Amendment to the United States

Constitution. We agree with the defendant that his challenge is

to a new breathalyzer technology and is not insulated from

challenge on grounds of reliability by virtue of G. L. c. 90,

§§ 24 (1) (e) and 24K. The defendant was entitled to raise a

reliability challenge to the Alcotest, and in the circumstances

of this case, was entitled to a so-called Daubert-Lanigan

hearing with respect to at least some of the issues he raised. 12

1. Statutory admissibility of Alcotest result. The

defendant first contends that the motion judge erred by failing

to hold a hearing on the Alcotest's reliability given that, he

asserts, the Alcotest "is not an infrared breath test," and

therefore is not admissible under the governing statutes.

General Laws c. 90, § 24 (1) (e), provides that in any OUI

prosecution, "evidence of the percentage, by weight, of alcohol

in the defendant's blood at the time of the alleged offense, as

shown by . . . a chemical test or analysis of his breath, shall

12
We find no merit in the Commonwealth's argument that the
defendant failed to preserve his challenge to the Alcotest's
reliability by neglecting to object to the admission of his
Alcotest result or to raise the issue of the Alcotest's
reliability at trial. As indicated previously, the defendant
did object at trial to the admission of his Alcotest result, and
he objected to the admission of a record of a periodic test of
the Alcotest on the specific ground that the Alcotest result was
unreliable.
 12

be admissible and deemed relevant to the determination of the

question of whether such defendant was at such time under the

influence of intoxicating liquor." Despite this broad language,

the relevant statutes condition the evidentiary admission of

breath test results on satisfaction of certain requirements. Of

relevance here is the requirement that a certified operator

perform the breath test "using infrared breath-testing devices"

according to methods approved by the Secretary of Public Safety

(Secretary) in accordance with regulations promulgated by the

Secretary. G. L. c. 90, § 24K. 13,14

13
General Laws c. 90, § 24K, provides in relevant part:

"Chemical analysis of the breath of a person charged
with a violation of this chapter shall not be considered
valid under the provisions of this chapter, unless such
analysis has been performed by a certified operator, using
infrared breath-testing devices according to methods
approved by the secretary of public safety. The secretary
of public safety shall promulgate rules and regulations
regarding satisfactory methods, techniques and criteria for
the conduct of such tests, and shall establish a statewide
training and certification program for all operators of
such devices and a periodic certification program for such
breath testing devices; provided, however, that the
secretary may terminate or revoke such certification at his
discretion.

"Said regulations shall include, but shall not be
limited to the following: (a) that the chemical analysis
of the breath of a person charged be performed by a
certified operator using a certified infrared breath-
testing device in the following sequence: (1) one adequate
breath sample analysis; (2) one calibration standard
analysis; (3) a second adequate breath sample analysis; (b)
that no person shall perform such a test unless certified
by the secretary of public safety; (c) that no breath
 13

Under these regulations, a breath test is admissible if, in

addition to being conducted by a certified operator, it is

administered using a "certified breath-testing device." 501

Code Mass. Regs. § 2.03 (2006). 15 OAT is responsible for keeping

a list of approved breath test devices, 501 Code Mass. Regs.

§ 2.38 (2006), and for certifying individual breath test devices

annually. 501 Code Mass. Regs. §§ 2.39-2.40 (2006). The

regulations specify that approved devices must appear on the

National Highway Traffic Safety Administration (NHTSA) list of

conforming products, 16 501 Code Mass. Regs. § 2.38, and reinforce

that the device must use "infrared breath testing technology."

501 Code Mass. Regs. § 2.38(5).

testing device, mouthpiece or tube shall be cleaned with
any substance containing alcohol."
14
There are other statutory conditions that must be
satisfied for admission, set out in G. L. c. 90, § 24 (1) (e):
a breath test may only be performed with the defendant's
consent; the test results must be made available to the
defendant at his or her request; and the defendant must be
"afforded a reasonable opportunity, at his request and at his
expense, to have another such test or analysis made by a person
or physician selected by him." The defendant does not suggest
that these conditions were not met in the present case.
15
We cite to the regulations as they appeared when the
defendant's offense occurred. See 501 Code Mass. Regs. §§ 2.00
(2006).
16
The Alcotest appeared on this list at the time of the
defendant's offense.
 14

The Alcotest uses an infrared light source as well as a

detector of infrared light to measure BAC. 17 If a subject's

breath containing alcohol enters the Alcotest's chamber, the

alcohol molecules absorb some of the infrared light from the

source and, consequently, this portion of the infrared light

does not reach the detector. The Alcotest then determines the

subject's BAC based on the amount of infrared light that reaches

the detector as compared to the amount of such light originally

emitted from the source. In addition to the infrared mechanism,

however, the Alcotest contains a separate testing mechanism, an

electrochemical fuel cell (fuel cell), that creates an electric

current in the presence of alcohol. 18 For the Alcotest to

produce an actual breath test result, the infrared and fuel cell

readings must be in "tight agreement" with one another; if the

two readings are not in agreement, the test aborts. The

17
Infrared radiation comprises the portion of the
electromagnetic spectrum that begins with wavelengths directly
above the visible spectrum. Different molecules absorb infrared
radiation differently. See Smythe, 23 Mass. App. Ct. at 350 n.1
(scientific basis "underlying infrared analysis of substances
derives from" principle according to which "molecules absorb
electromagnetic radiation, and only radiation of certain
wavelengths will be absorbed by a molecule of any given
compound").
18
Electrodes that comprise the electrochemical fuel cell
(fuel cell) oxidize the alcohol in a subject's breath sample,
creating an electric current. The fuel cell's sensors then
measure the extent of the electric current, which is
proportional to the sample's alcohol content.
 15

defendant contends, therefore, that the Alcotest is not an

"infrared breath-testing device" within the meaning of § 24K and

the corresponding regulations because the infrared portion of

the machine does not alone control whether the machine produces

a valid measurement of BAC.

We disagree. Section 24K requires chemical analyses of

breath to be performed using an infrared breath-testing device

"according to methods approved by the" Secretary, as set out in

the Secretary's regulations. As previously indicated, the

regulations, in turn, require that any device be approved by

NHTSA, which the Alcotest is, and use "infrared breath testing

technology" to measure BAC, which the Alcotest does. That the

Alcotest also employs the fuel cell to ensure the accuracy of

the infrared measurement does not change the fact that it uses

the required infrared technology. 19 Moreover, in Massachusetts

the Alcotest's infrared reading, rather than the fuel cell

reading, is the only measurement used to report a subject's BAC

when a valid test occurs. This aspect of the defendant's

challenge to the Alcotest fails.

19
The defendant points to no statutory or regulatory
requirement in effect at the time of his offense indicating that
a breath test device was required exclusively to use infrared
technology. In fact, two years after the defendant's arrest the
Secretary of Public Safety clarified the infrared requirement by
stating expressly that it does not bar the use of "complementary
technologies" to safeguard the accuracy of testing. 501 Code
Mass. Regs. § 2.05(4) (2010).
 16

The motion judge concluded, and the Commonwealth argues

here, that where a breath-testing device meets the requirements

of §§ 24 (1) (e) and 24K, and applicable regulations, a Daubert-

Lanigan inquiry into the reliability of the device is neither

necessary nor appropriate because the Legislature has expressly

deemed evidence of a breath test conducted through use of such a

device admissible. The defendant contends, however, that even

if his breath test result is deemed admissible under the

statute, and even though the scientific principle underlying the

breathalyzer's premise may be generally accepted, 20 the Alcotest

presents a new methodology that is not immune from challenge as

to the scientific and technological reliability of the process

by which it measures and analyzes the quantity of alcohol in a

person's breath and, as a consequence, the reliability of the

breath test results that are offered in evidence. Accordingly,

he argues, the judge erred in declining to conduct a hearing to

assess the Alcotest's reliability.

The defendant's position has merit. It has long been the

case that where "evidence produced by a scientific theory or

20
The scientific principle underlying a breathalyzer, known
as Henry's Law, is the following: "at any given temperature,
the ratio between the concentration of alcohol in one's blood
and that in the alveolar air in the lungs is a constant:
2,100:1." Smythe, 23 Mass. App. Ct. at 350 (citation omitted).
See note 3, supra.
 17

process" 21 is at issue, the judge plays an important gatekeeper

role to evaluate and decide on its reliability as a threshold

matter of admissibility. See Lanigan, 419 Mass. at 25-26. See

also Commonwealth v. Shanley, 455 Mass. 752, 761 (2010) ("the

judge must make a preliminary assessment whether the theory or

methodology underlying the proposed testimony is sufficiently

reliable to reach the trier of fact"). The Alcotest is the

first "dual-sensoric" breath test machine that analyzes a

subject's breath by means of an infrared test and a fuel cell

test, and neither this court nor the Appeals Court has

considered the reliability of its source code. We recognize

that the "Legislature doubtless has the power to prescribe the

rules of evidence and the methods of proof to be employed in

trials in court." Meunier's Case, 319 Mass. 421, 425 (1946).

But the power to do so does not mean that the reliability of

every type of evidence the Legislature may deem admissible,

particularly in a criminal case, is automatically insulated from

challenge and review on reliability grounds. Cf. Commonwealth

v. Given, 441 Mass. 741, 742, 746-747 & n.9, cert. denied, 543

U.S. 948 (2004) (discussing admissibility, at commitment trial

of person accused of being sexually dangerous, of police report

-- made admissible by statute -- containing hearsay evidence of

prior offense: "Unlike the confrontation clause, due process

21
Commonwealth v. Curnin, 409 Mass. 218, 222 (1991).
 18

demands that evidence be reliable in substance, not that its

reliability be evaluated in a particular manner. That the focus

on reliability may not accommodate a simple, predictable,

bright-line rule does not alter the fact that reliability, not

cross-examination, is the due process touchstone" [quotations

and citations omitted]). 22 Indeed, this court has indicated just

the opposite in a case that dealt with a different type of

breathalyzer device.

In Commonwealth v. Neal, 392 Mass. 1, 14, 18-19 (1984), we

held that the admissibility of test results, produced by a

particular model of breathalyzer, the Smith & Wesson Model 900A,

that had been discovered to be vulnerable to radio frequency

interference (RFI) that could result in inaccurate readings,

required "a demonstration to the judge of the accuracy of the

22
We disagree with the Commonwealth that the case of
Commonwealth v. Bradway, 62 Mass. App. Ct. 280 (2004), should
control the outcome here. That case considered whether a judge
was required to conduct a Daubert-Lanigan analysis of the
reliability of testimony to be presented by qualified examiners,
whose reports of and testimony about their examination,
diagnosis, and opinions of a person accused of being sexually
dangerous are made admissible by statute. See Bradway, supra at
283-284, 286; G. L. c. 123A, § 14 (c). The Appeals Court
concluded that requiring such a threshold judicial evaluation of
the reliability of a qualified examiner's opinion testimony in
every case would improperly "dismantle the statutory framework."
Bradway, supra at 289. Opinion testimony by a trained
psychiatrist or psychologist concerning his or her evaluation
and diagnosis of an individual's mental state and possible
sexual dangerousness is a type of evidence that is grounded in
recognized theories and principles and has long been deemed
admissible. See, e.g., id. at 288 n.12.
 19

particular [breathalyzer] unit at the time the test was

performed." The defendant in Neal did not challenge that the

principles underlying breath testing machines were generally

accepted by the scientific community, but instead argued that

the discovery of that model's "susceptibility to RFI require[d]

reconsideration of the admissibility of examination results"

from the device. Id. at 17. Although § 24 (1) (e) at the time

provided that breath test evidence was admissible and relevant

to the issue of a defendant's operation of a motor vehicle while

under the influence, see id. at 17 n.17, the court still

directed that the Commonwealth must establish the reliability of

the particular breath test in each case, in light of evidence

that cast doubt on its accuracy. Id. at 18-19. 23

23
The Commonwealth contends that Commonwealth v. Neal, 392
Mass. 1 (1984), is inapposite because it was decided before the
enactment of G. L. c. 90, § 24K, and regulations related to the
maintenance and certification of breathalyzers and the lack of
oversight of the device forced the court in Neal to demand proof
that a particular breathalyzer was functioning appropriately at
the time of a defendant's breath test. The Commonwealth argues
that by the time of the defendant's offense in this case,
however, the statutory and regulatory framework ensured that the
Alcotest's results were reliable. The argument is not
persuasive. In its detailed consideration of the defendant's
challenge to the scientific reliability of the breathalyzer at
issue in Neal, the court never suggested that it was obliged to
undertake this analysis of the merits of the challenge because
the Legislature had failed to institute a certification and
maintenance regime for such devices. Rather, the court's
analysis was premised on the recognition that breath test
evidence, admissible by statute, plays a significant role in a
prosecution for operating a motor vehicle while under the
influence of liquor, and due process principles require that a
 20

The Chief Justice of the District Court assigned the

defendant's case and others to the motion judge for resolution

of common issues concerning at least the reliability of the

Alcotest's source code, and specifically authorized the motion

judge to conduct hearings to that end. As stated, we recognize

"the reliability of the scientific principles underlying the use

of breathalyzer evidence." Commonwealth v. Durning, 406 Mass.

485, 490 (1990). In the circumstances here, however, where the

applicable statutes and regulations do not provide specific

standards relating to the source code of breathalyzers, 24 and

existing case law offers no guidance about the reliability of

the Alcotest's methodology for measuring and analyzing the

quantity of alcohol in a person's breath, the judge should have

held a hearing to determine whether the source code and other

challenged features of the Alcotest functioned in a manner that

reliably produced accurate breath test results. See Shanley,

455 Mass. at 763 n.15 (although Daubert-Lanigan hearing "may not

always be required where qualified expert testimony of the same

defendant have the opportunity to challenge its accuracy and
scientific reliability. See id. at 8, 17-20. Here, none of the
statutory or regulatory requirements that currently govern
breath test results relates to the aspects of the Alcotest's
design and operation that the defendant challenges.
24
The National Highway Traffic Safety Administration
(NHTSA), on whose list of conforming products the Alcotest was
required to appear for use in Massachusetts, see 501 Code Mass.
Regs. § 2.38 (2006), does not analyze a breathalyzer's source
code when determining whether it conforms to NHTSA's standards.
 21

type and offered for the same purpose has been accepted as

reliable in the past in Massachusetts appellate cases," this

court has "not 'grandfathered' any particular theories or

methods for all time"). 25

2. Reliability of Alcotest breath test results. Given the

motion judge's disposition of the defendant's motion in limine,

he did not consider on their merits the defendant's specific

challenges to the Alcotest's reliability, supported by and

described in the expert witness affidavits and articles

submitted by the defendant in support of his motion. This was

error. The defendant was entitled to have the merits of his

challenges considered and the reliability of the Alcotest breath

test result established before the evidence of that test result

could be admitted in evidence against him. See Commonwealth

v. Sands, 424 Mass. 184, 188 (1997).

The question remains whether, despite the fact that the

motion judge did not consider the merits of the defendant's

challenges, the present record clearly establishes the

25
The judge's second reason for declining to hold a hearing
was that the New Jersey Supreme Court, in Chun, 194 N.J. 54,
already had considered and rejected a challenge to the
reliability of the Alcotest. Although the court in Chun did
address the reliability of the Alcotest and of its source code
in particular, see id. at 75, 121-131, it did not address all of
the challenges the defendant in this case raises to the
Alcotest's reliability. For example, the court in Chun did not
consider whether the Alcotest tests exclusively for ethanol or
whether the Alcotest's calibration system fails to adequately
measure the reliability of the device.
 22

reliability of the Alcotest. We have carefully reviewed the

defendant's submissions and the corresponding materials

submitted by the Commonwealth in opposition to the defendant's

motion in limine; we also have reviewed the New Jersey Supreme

Court's decision in Chun, 194 N.J. 54. The review leads us to

conclude that on the paper record before us, without a hearing,

it is not possible to determine that the defendant's challenges

have no substantial basis and do not implicate the reliability

of the Alcotest breath test evidence. For this reason, we

conclude that it is appropriate to vacate the judge's order

denying the defendant's motion to exclude the Alcotest breath

test evidence and remand this case to the District Court for the

purpose of conducting such a hearing. Cf. Commonwealth v. A

Juvenile, 381 Mass. 727, 729 (1980) (remanding case to Juvenile

Court for hearing on admissibility, on reliability grounds, of

hypnotically aided testimony).

On remand, a hearing on the Alcotest's reliability will be

necessary. In that connection, we add the following comments.

a. The primary reliability challenge raised by the

defendant below was to the Alcotest source code. In support of

the motion in limine, the defendant retained a software

engineer, Joel Cohen, to analyze the source code. As stated in

his affidavit, Cohen used an "industry standard code analysis

tool" referred to as LINT, which revealed more than 7,000 errors
 23

and 3,000 warning signals upon scanning the Alcotest's source

code. However, according to the report of Daniel Hestad, a

source code analyst retained by the Commonwealth, scanning tools

such as LINT, alone, are not conclusive as to errors within the

source code because they are known to produce falsely positive

results, and even a true error may not result in flawed software

functionality due to the defect's location in the code. Hestad

also noted that it is to be expected that a source code as

extensive as the Alcotest's would contain defects and coding

errors. Cohen's analysis focused on one particular category of

significant error in the source code: uninitialized variables.

Hestad agreed that the use of uninitialized variables in the

Alcotest's source code was an "unsafe coding practice." He

opined, however, that uninitialized variables did not appear in

portions of the code that bear directly on the Alcotest's

measurement of a subject's BAC, and that the Alcotest's

requirement that a certified operator manually reset the device

so as to remove values from previous tests suggests that it is

"very unlikely" that an uninitialized variable would affect a

BAC computation. It may be that Hestad's opinion -- and the

fact that Cohen did not point to a specific instance in which an

uninitialized variable or other error would, with any degree of

certainty, cause an unreliable BAC measurement -- will carry the

day, and result in the rejection of the defendant's challenge to
 24

the Alcotest source code. See Neal, 392 Mass. at 21 (this court

does "not require a demonstration of infallibility as a

precondition to consideration of scientific evidence by a trier

of fact"). But we are not able to assess the validity of the

two experts' differing views on the basis of their competing

affidavits alone, which underscores the value that a hearing

would provide, and likely an evidentiary hearing. 26

b. The defendant also claims that the Alcotest is not

capable of testing exclusively for ethanol, which would or might

render its breath test results invalid. Donald J. Barry, Ph.D.,

an astronomer with a background in chemistry who was retained by

the defendant, opined in an affidavit that the Alcotest is

"sensitive" to the ethanol content of a subject's breath, but

incapable of testing exclusively for ethanol. He reasoned that

the design of the Alcotest's infrared mechanism, which operates

at a 9.5 micron wavelength to absorb alcohol, may result in an

inability to accurately measure compounds "which absorb

26
A hearing pursuant to Daubert and Lanigan need not always
be an evidentiary hearing. See Palandjian v. Foster, 446 Mass.
100, 111 (2006); Commonwealth v. Addy, 79 Mass. App. Ct. 835,
838 (2011). In a case where the documentary record, in
conjunction with the arguments of the parties, allows for a
reasoned determination of the evidence's reliability, an
evidentiary hearing may not be necessary. Cf. Vassallo v.
Baxter Healthcare Corp., 428 Mass. 1, 8-9, 12 (1998). As stated
previously, our review of the affidavits and other materials in
the record suggests that an evidentiary hearing is likely
necessary in this case, but we leave the decision whether to
hold one to the District Court judge on remand.
 25

[infrared radiation] at 9.5 microns but not at adjacent

wavelengths"; he notes that all "compounds with a carbon-oxygen

bond display an infrared absorption in the 8-10 micron region"

and, accordingly, methanol and ethanol absorb infrared radiation

in this range, as do "acetone, acetic acid, acetaldehyde, ethyl

acetate," and others. In short, Barry asserted, the Alcotest's

infrared testing design "cannot be used to distinguish between a

detection of ethanol and interfering substances," and that the

Alcotest's fuel cell is incapable of measuring ethanol to the

exclusion of interfering substances.

The Commonwealth counters that the applicable statutes and

regulations do not explicitly require that a breathalyzer must

test solely for ethanol. It is true that G. L. c. 90, § 24 (1)

(e), deems generally admissible breath test evidence "of the

percentage, by weight, of alcohol in the defendant's blood at

the time of the alleged offense" (emphasis added). However, we

are hard pressed to conclude that the Legislature intended

breathalyzers to test for substances other than ethanol.

"Alcohol" is generally defined as "ethanol." See Webster's

Third New International Dictionary 50 (2002) ("alcohol" is also

called "ethanol"); American Heritage Dictionary of the English

Language 41 (2006) (same). Cf. Commonwealth v. Smythe, 23 Mass.

App. Ct. 348, 350 (1987) (describing different breathalyzer as

being "designed to measure ethyl alcohol in the breath").
 26

The Commonwealth also argues that the Alcotest does test

exclusively for ethanol, but the evidence in the record is

unconvincing on this front. The affidavit of Hansueli Ryser, a

vice-president of Draeger, notes that infrared breathalyzers

typically operate at wavelengths of 3.4 or 9.5 microns so that

the radiation is absorbed by alcohol, and that the Alcotest's

"9.5 micron wavelength is either non-susceptible to interfering

substances or susceptible at only a fraction of what it is at

3.4 microns." Ryser then states:

"I agree that the [infrared] system, by itself, is not
specific to ethanol. I also agree that the [fuel
cell] is not specific to ethanol. However, the
[Alcotest] is the only dual-sensoric breath testing
device combining both analytical technologies in one
instrument where both sensors analyze the same breath
specimen. The [fuel cell] and [infrared] readings
must be within tight agreement with each other.
Otherwise the device flags the test as being tainted
by an interfering substance and the test aborts.
Thus, the [Alcotest] as a whole is ethanol specific."

The logical leap that Ryser makes from the infrared system and

fuel cell each not testing specifically for ethanol to the

system as a whole being ethanol-specific is confusing, to say

the least. While there may be a reasonable scientific

explanation for why Ryser's position is accurate, such an

explanation is not apparent in the record. On remand, a judge

should consider whether the Alcotest is sufficiently ethanol-

specific such that its results are reliably untainted by

interfering substances.
 27

c. The defendant contends that the Alcotest's calibration

testing mechanism does not indicate adequately the Alcotest's

ability to measure accurately an actual subject's BAC. A report

concerning the Alcotest's source code submitted as part of the

defendant's evidentiary support for his motion in limine

suggests that even though the Alcotest performs a calibration

test against a solution with known alcohol content in the course

of analyzing a subject's breath, such a calibration test does

not assist in determining whether the Alcotest accurately

assesses the subject's BAC because the Alcotest's source code

"takes completely different paths (executes different

instructions) for the calibration measurement than when it

measures the subject's breath." This is of relevance because

G. L. c. 90, § 24K, requires that a "'calibration standard

analysis[]' be performed" prior to the administration of a

breathalyzer test "in order for [the] test to be valid." Morris

v. Commonwealth, 412 Mass. 861, 863 n.3 (1992). "These

simulations, using solutions with a known alcohol content, are

designed to test the accuracy of the breathalyzer unit." Id.

The assertion in the defendant's report, which the Commonwealth

did not rebut in its submission to the District Court or on

appeal, suggests that the Alcotest's source code renders its

calibration measurement ineffective to "test the accuracy" of
 28

the Alcotest. Accordingly, this challenge must be resolved on

remand. 27

Conclusion. The order denying the defendant's motion to

exclude evidence of the defendant's Alcotest breath test result

is vacated, and the case is remanded to the District Court for

further proceedings consistent with this opinion. In

particular, a judge of the District Court is to conduct a

hearing on the defendant's motion to exclude, and is to file

with this court the judge's findings and rulings based on that

hearing within ninety days of the date of the rescript.

So ordered.

27
The Commonwealth argues on appeal that testing of the
Alcotest conducted by the Commonwealth's office of alcohol
testing (OAT) in the course of this litigation establishes that
the device accurately measures BAC. OAT's testing consisted
primarily of the Alcotest analyzing samples with differing known
alcohol content; a sequence consisted of "two breath samples and
the analysis of a calibration standard." The results of the
testing sequences of each sample of known alcohol content appear
to show that the Alcotest accurately measured the calibration
standard in each sequence while also generally measuring the
alcohol content of each sample accurately. As part of the
testing, OAT also dosed a volunteer with three alcoholic
beverages, tested her BAC with the Alcotest and through a blood
test, and found the results of each test to substantially agree
(if anything, the breath test was lower). However, given the
defendant's assertion that the Alcotest's source code renders
its calibration test ineffective toward determining whether the
Alcotest reliably measures a subject's BAC, we are reluctant to
rely on OAT's testing to resolve the defendant's challenge
regarding the calibration mechanism without a better
understanding than the present record permits us to gain.