"Lawyers representing more than 500 defendants
have asked the state’s highest court to intervene in a case that
challenges the reliability of alcohol breath testing machines used
across Massachusetts. Hundreds of accused drunk
drivers have joined a consolidated case being heard in Concord District
Court. The defendants argue evidence produced by the breath-analysis
machines is not scientifically sound.........Lawyers
are also challenging a protective order that spells out the terms under
which an expert hired by the defendants will be allowed to review the
computer software that powers the machines. The defense team argues it
has been unable to find an expert willing to abide by the order, which
includes safeguards to protect the manufacturer's proprietary computer
code. “We are trying to protect the interest of
the consolidated class, the group of breath test defendants, which is
hundreds of people,” said Michael S. Bowser, one of five lawyers
representing the defendants. “By going up to the single justice, we’re
seeking a more transparent hearing process in terms of additional
discovery, the use of an expert of our choice who’s not restricted by
the court’s protective order, and hopefully just a fuller, more fair,
hearing process.” The instrument at issue in the
case, the Draeger Alcotest 9510, has been used by police departments
across Massachusetts since 2011. Legal
challenges began mounting against the device last year after the state
Executive Office of Public Safety and Security disclosed the machines
were never programmed with the correct tolerance settings when the state
purchased them. Public safety officials
maintain there is no evidence the devices were malfunctioning, and that
police using the machines should have caught any tolerance problems. Nevertheless,
the revelation led a slew of defendants to argue the evidence produced
by the machines is invalid. As many as 1,000 drunk driving cases have
been stayed pending a hearing on the issue, which is being heard by
Judge Robert A. Brennan. Brennan, who sits in
Salem District Court, previously agreed to allow a defense expert to
review the machine's source code. However, defense lawyers say their
expert balked when the German manufacturer, Draeger Safety Diagnostics,
asked him to sign a nondisclosure agreement, which they described as
vague and overly restrictive, placing their expert in potential legal
jeopardy. “It really exposed the expert to
litigation throughout the United States and Germany,” lawyer Gregory
Oberhauser said last month, explaining it contained “loose” definitions
of confidential information, breaches and other legally sensitive
concepts."
http://www.milforddailynews.com/article/20160324/NEWS/160327158