Massachusetts Court Says Breathaylzers Are A-OK Less Than Three Months After Declaring Them Hot Garbage

from the good-enough-for-the-drukqs dept

Breathalyzers are like drug dogs and field tests: they are considered infallible right up until they’re challenged in court. Once challenged, the evidence seems to indicate all of the above are basically coin tosses the government always claims to win. Good enough for a search or an arrest when only examined by an interested outsider who’s been subjected to warrantless searches and possibly bogus criminal charges. But when the evidentiary standard is a little more rigorous than roadside stops, probable cause assertions seem to start falling apart.

Drug dogs are only as good as their handlers. They perform probable cause tricks in exchange for praise and treats. Field drug tests turn bird poop and donut crumbs into probable cause with a little roadside swirling of $2-worth of chemicals. And breathalyzers turn regular driving into impaired driving with devices that see little in the way of calibration or routine maintenance.

Courts have seldom felt compelled to argue against law enforcement expertise and training, even when said expertise/training relies on devices never calibrated or maintained, even when said devices are capable of depriving people of their freedom.

Once every so often courts take notice of the weak assertions of probable cause — ones almost entirely supported by cop tools that remain untested and unproven. Late last year, a state judge issued an order forbidding the use of breathalyzer results as evidence in impaired driving prosecutions. District court judge Robert Brennan said he had numerous concerns about the accuracy of the tests, and the oversight of testing, and the testing of test equipment by the Massachusetts Office of Alcohol Testing.

“Breathalyzer results undeniably are among the most incriminating and powerful pieces of evidence in prosecutions involving either alcohol impairment or “per se” blood alcohol percentage as an element. Their improper inclusion in criminal cases not only unfairly impacts individual defendants, but also undermines public confidence in the criminal justice system.”

The pause on using breathalyzer tests as evidence is only the most recent development in a year’s long challenge of their accuracy. In 2017, ruling on the reliability of tests taken between 2012 and 2014, Brennan found that while the tests were accurate, the way the state maintained them was not.

A court finally found a reason to push back against assertions of training and expertise, as well as assertions that cop tech should be considered nigh invulnerable. But the pushback is over. The same court is apparently now satisfied that the tech it questioned last November is good enough to make determinations that can deprive people of their property and freedom.

Breathalyzers are back in business in the Bay State after a judge dropped the suspension on breath tests, which cops use to bust and prosecute drunk drivers.

Salem Judge Robert Brennan, who in November ordered the statewide exclusion of breath test results, has tossed out the police Breathalyzer pause.

The Draeger Alcotest 9510 breath tests have come under fire for several years, as a Springfield OUI attorney represents defendants in statewide Breathalyzer litigation. Lead defense attorney Joseph Bernard has been raising concerns about the software problems impacting the scientific reliability of the breath test.

But the Salem judge in the ruling vacating the Breathalyzer suspension said the Draeger Alcotest 9510 “produces scientifically reliable breath test results.”

Judge Brennan isn’t willing to let the possibly subpar be the enemy of the verifiable good. If you went long on breathalyzers late last year, it’s time to cash out. According to Judge Brennan, whatever’s determined to be good enough is, well, good enough to deprive people of their liberties. Brennan’s decision notes there’s no such thing as “perfect source code” or “flawless machines.” Therefore, state residents should just resign themselves to the fact their freedom is reliant on the Massachusetts’ OKest Breathalyzers.

“This Court remains satisfied that the public can have full confidence in the results produced by the Alcotest 9510…”

But can they though? Who knows? Certainly not this court. Certification information has been offered but prior to the November 2021 decision, state prosecutors were voluntarily excluding breathalyzer evidence. That’s not exactly a vote of confidence. And this vote against breathalyzers was coming from entities judged almost solely on their prosecutorial wins, necessitating the need to achieve as many easy wins as possible.

Weirdly, the judge says the tests are OK but their oversight isn’t. Despite the fact that both facets need to be on the same level to avoid abuse and unjustified arrests, the judge is allowing roadside testing to move forward while criticizing the Office of Alcohol Testing for its “lack of candor and transparency” when dealing with the court and criminal defendants.

In the end, the system prevails. Massachusetts cops can continue to use questionable tech to effect arrests and engage in warrantless searches and detentions. As for its oversight, it’s only being threatened with the possibility of further action from this court — the same court that ended breathalyzer testing in November (citing concerns about equipment and accuracy) only to reverse course three months later.

One imagines the demands placed on the Office of Alcohol Testing will be just as temporary as this court’s momentary pause on the use of unproven tech. The desire to be in the police business once again outweighs the public’s concern about being on the wrong end of baseless prosecutions. The onus is back on presumably innocent defendants to prove the government isn’t using faulty tech to lock them up.

Filed Under: , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Massachusetts Court Says Breathaylzers Are A-OK Less Than Three Months After Declaring Them Hot Garbage”

Subscribe: RSS Leave a comment
This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

Well then lets make sure all the Judges & lawyers are given a breath test before entering the courtroom.

I mean if its all scientific and stuff they should have no problem providing samples & posting the results for all to see.
I mean isn’t it fair to know what the cogs of justice itself are actually as sober as the day is long while they are going through the motions to make citizens think they still actually have rights?

That One Guy (profile) says:

'It's not MY freedom at risk so it's good enough.'

Brennan’s decision notes there’s no such thing as "perfect source code" or "flawless machines."

… Said the person who will never find himself on the receiving end of the tech in question where a false positive could have serious consequences on his life.

It’s easy to say that questionable tech is good enough to lock someone up and/or hit them with serious fines when you will never face that risk, however even making that argument should be enough to see him removed from the bench as wildly unfit for the job.

This comment has been deemed insightful by the community.
K`Tetch (profile) says:

Wait what?

"Brennan’s decision notes there’s no such thing as "perfect source code" or "flawless machines.""

I just want to point out that in most jurisdictions, such machines are literally held up as ‘flawless machines’, incapable of error, and infallible in their evidence. Does that mean that now they’ll be at least open to questioning about the accuracy on a per-case basis?
Does it fuck!

"But the Salem judge in the ruling vacating the Breathalyzer suspension said the Draeger Alcotest 9510 "produces scientifically reliable breath test results.""

Except it literally doesn’t. What it measures, and what it claims to measure are two very different things. it takes a reading of 1.5l of breath and analyses that. It then takes the alcohol reading from that 1.5l and then extrapoolates it against a fixed value to determine how intoxicated the person must be. yet the actual lung volume varies by person. a short fat person that lives at the beach will have a lung capacity of maybe 2.5l, while a 6.4 mountain climber from Denver will have a capacity of maybe 8l. So that 1.5l can be 60% of one person or 18% of another. which means for an actual ‘breath concentration’ of alcohol, the tested value will vary by potentially a factor of 3 – WHICH MAKES A HUGE DIFFERENCE.

And thats before gender, as women have typically 2/3 the lung capacities of men.

And then there’s the tests, according to the device’s manual, its main test is an IR beam, that looks for absorbtion at 9.5µm. Well, before it takes a breath, it ‘purges’ with air from the locality. Better hope you’ve got nothing titanium around there, because titaniim dioxide also absorbs at 9.5µm – its a white pigment, used in car paint (like the white in many cop cars), as well as Sunscreen and… Toothpaste. Just as well toothpastes don’t go near the mou…. Fuck!

Seriously, the idea that the science is good behind these things is bullshit. For ‘science’ you have two variables and you keep the rest the same. One is the indepdent variable, which changes, and the other is the dependent, which is your result and should(!) have a relation to the independent one.

And yet here, the dependent variable given (the breath alcohol percentage) is not the only variable, as all the rest are not even given consideration.

And you absolutely should not look at pages 18-21 of the manual, which describes the many ways "technicians" can manually adjust the calibration of the instrument.

This comment has been deemed insightful by the community.
MickyNozawa says:

UK variations

In the UK, roadside breath tests cannot be used in evidence. They are used as an indicator to the testee being above the legal limit.
If above the limit, the driver is arrested and taken to the local police station where an approved breath testing device (an extremely large machine about the size of a chest freezer) takes to separate samples. These are the samples used in evidence.
The driver cam also opt for blood samples to be taken instead of using the breath analyser.
If a driver refuses a roadside test, he can be arrested and taken to the station for the above tests.

PartTimeZombie (profile) says:

Re: UK variations

That is how it works in New Zealand as well. A friend of mine however, decided he could not possibly have been over the limit after his evidential test, and when his case came up, he pleaded not guilty and asked for the machine’s maintenance records.
These records were apparently unavailable and the case was dropped.
No word on whether the records were ever found or if the machine is being maintained properly though.

This comment has been deemed insightful by the community.
Anonymous Coward says:

damned if you do or don't

Massachusetts law: refusal of a breathalyzer test is automatic immediate license suspension. Starts at 6 months and get longer each time. 4th time is lifetime suspension. Not guilty in court doesn’t matter. Takes RMV hearing and $500 to get license back.

Punished by default or provide evidence using flaky technology. Take your pick.

That One Guy (profile) says:

Re: For all those harping on corrupt cops

It’s a symbiotic relationship when it comes to preying upon the public, the police violate the rights/lives, the prosecutors bring the hammer down on the victims and the judges give it all the stamp of approval and/or shield the police should anyone have the audacity to try to argue that the police are ever wrong.

Tanner Andrews (profile) says:

Might Want to Examine the Source Code

Back in the day, I did some embedded code. A side effect of the functional code was collection of internal statistics. These were little more than a few counters that could be useful in assessing how things worked. If you used the secret sequence of keys, the statistics would be displayed, along with the code version information, which let us know what the device was running. We called this an “easter egg”.

I understand that some computer games also have these things, and sometimes secret key sequences will give the user particular results or powers. Some of these sequences were entirely made up, some actually existed.

I cannot imagine that, in the proprietary secret code of the breath test machines, there is not something similar. It just beggars imagination that the authors would omit such things, whether “for testing” or just to see what they could sneak in there.

This comment has been deemed insightful by the community.
TaboToka (profile) says:

Ruled by the ignorant

Brennan’s decision notes there’s no such thing as "perfect source code" or "flawless machines."

Brennan should stick to things he’s good at, like yelling at clouds, telling imaginary kids to get off his lawn, or holding up the grocery line to find a $0.05 coupon in his wallet.

Behold, the NASA Shuttle’s onboard software group:

"[As of 2010]… it has been 24 years since the last time a software problem required an on-orbit fix during a mission. In the last 12 years, only three software errors have appeared during a flight. But perhaps the most meaningful statistic is that a software error has never endangered the crew, shuttle or a mission’s success.

They are a textbook example of very-high precision development. When some random jack-all Judge pops off about how software isn’t perfect, he needs to shut his cornhole.

When breathalyzer codes have been examined, they have been revealed to be wretched hives of villiany, dead code, magic numbers, hard-coded results and lots and lots of monkey patches.)

Anonymous Coward says:

Re: Ruled by the ignorant

That’s actually a pretty good comparison.

When people’s lives are on the line, the code should be the best.

I don’t think the breathalyzer sorts would be writing the code that runs in, say, military avionics rtos environments. (Of course, we’ve seen some stupid shit in this realm as well, especially since the modern commercialization efforts in the industry.)

Paul B says:

Re: Re: Ruled by the ignorant

If the code was provided, it could mostly be rewritten down to a few relevant lines.

Scan air for a specific wavelength, if something absorbing that wavelength is found, how much was found, now multiply that by some number to get BAH.

How did they figure out that number? They found some "Average person" got him to various levels of drunk, took air tests and blood tests at the same time and found the number that gave the legal limit for that one person.

It does not take people much time to poke holes that the breathalyzer does not prove anything more then the presence of something that absorbs a wavelength found in a persons lungs and/or mouth.

So any good defense should be able to challenge all of the above fairly easily, especially for edge cases since the device is only giving an estimate and is not ever adjusted for body weight, mass, or lung capacity.

Rocky says:

Re: Ruled by the ignorant

They are a textbook example of very-high precision development. When some random jack-all Judge pops off about how software isn’t perfect, he needs to shut his cornhole.

If everyone developed software like they did for the space-shuttle it would become so expensive nobody would be able to afford it.

And the judge is correct, there is no perfect source code or flawless machines for the simple reason that perfect source code should be able to handle any and all fail-states on the hardware it is running on.

Using an example of something that’s extremely specialized, expensive and most likely unique to tell that someone is wrong when they make a note about how things in general works is just plain fucking stupid and disingenuous.

It’s like holding up as an example that F1-cars top-speed is ~230mph/370kmh proves that someone is wrong for saying that cars rarely go faster than ~155mph/250kmh.

Carrie Johnson says:

Any info. or advise, from yet another victim of the system?

Been waiting since June 2021, for my day in court to hopefully prove your EXACT narrative. My license stripped from me for over year, having to blow into SCRAM unit “on time” everyday, 4X/day. I can’t drive, can’t work, difficult to get food, price of gas disastrous (re: possible ride), and not even ALLOWED to have sip of alcohol to help my depression, or even to use mouthwash (you know the stuff that actually works)?

Originally pulled over, late evening going home, post 3 hours after couple glasses of wine. Roads neglected, and “lock down” ending, pulled over for “supposed lane violation”…alias dodging couple potholes. 3 mo. later, same thing, this time tailgated by PD. They pulled behind me seconds before I realized. Perhaps running my plates 🤨
Dusk, headlights “almost” needed. I had mine on, they did not. Result…yet another supposed “lane violation” on narrow, desolate country road. Trees neglected by Public Works, of course. I drive a Jeep Sahara, not best, if trying to avoid ugly scratches from low lying limbs.

How do you get 2 lane violations within 3 months, when your COMPLETELY alone on road, or so you think??
Sober both times, couple drinks HOURS prior…you would think drinking responsibly…NOT in MA. at least, and NOT according to highly unlikely maintained “Covid” breath testing?!

Thank You so much for your post, felt very alone, still extremely helpless 😢

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...