By Conor Berry
The Pittsfield Berkshire Eagle
PITTSFIELD, Ma. — The Berkshire County attorney leading the local charge for an official legal opinion about the efficacy and accuracy of the alcohol-detection device used in drunken driving cases finally has a date with a judge.
On Sept. 23 and 24, Worcester District Court Judge Richard Sullivan is expected to hear testimony from Pittsfield attorney Leonard H. Cohen and other Massachusetts defense attorneys advocating for a legal position regarding the reliability of the Alcotest 7110, a breath-detection device used by Massachusetts police departments to gauge motorists sobriety levels.
The only way to get answers about the dependability of test results from Alcotest — and thus, the admissibility of those results in a court of law — is to get the machine’s German manufacturer to disclose information about the device. However, such a revelation has required judicial intervention in the past.
Cohen has been trying in earnest since last year to get Massachusetts to weigh in on the matter. In December 2009, Central Berkshire District Court Judge Fredric D. Rutberg agreed with Cohen s cause, ruling that information about how the device functions should be included in the normal discovery phase of a case.
Alcotest’s manufacturer has historically maintained that the information being sought was proprietary in nature and therefore off-limits to the public — including lawyers. Courts in other states have successfully compelled the company to reveal so-called source codes and other programming information, but no Massachusetts authority has ever required that information to be included during the discovery phase.
Now, however, company officials at Drager, Alcotest s manufacturer, have agreed to turn over the source code, according to Cohen, which is why he wants the commonwealth to strike while the iron is still hot. The source code is a series of general algorithms arranged in a manner to implement Alcotest s breath-testing sequence.
Cohen is optimistic the September hearings will move Massachusetts closer to establishing a legal opinion that can be cited in future OUI cases involving Alcotest.
The infrared breath-testing technology used in Alcotest is presently “the only accepted method for evidentiary breath testing in the commonwealth,” according to the Massachusetts Executive Office of Public Safety and Security.
For Cohen, the issue ultimately comes down to “man vs. machine.” If humans are fallible, than the machines we make cannot be infallible. That s why humans should not defer to machines without knowing how they work, Cohen said.
The attorney said more than 60 Massachusetts cases involving the Alcotest machine will bundled together and presented to Sullivan, which is why the matter is being heard in Worcester, a central location.
Regardless of the outcome of the September hearings, Cohen said he anticipates the issue eventually making it to the state Appeals Court or possibly to the Supreme Judicial Court, where clear-cut legal precedents could be established.
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