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SJC-11774
COMMONWEALTH vs. KIRK P. CAMBLIN.
Middlesex. September 7, 2017. - December 8, 2017.
Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, 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.
Following review by this court, 471 Mass. 639 (2015), a motion to exclude evidence as scientifically unreliable was heard by Mark A. Sullivan, J.
Andrew W. Piltser Cowan for the defendant. Casey E. Silvia, Assistant District Attorney (Cyrus Y. Chung & Laura S. Miller, Assistant District Attorneys, also present) for the Commonwealth.
GAZIANO, J. In Commonwealth v. Camblin, 471 Mass. 639,
640, 651 (2015) (Camblin I), we remanded this case to the
District Court to conduct a hearing on the scientific
reliability of a particular model of breathalyzer, the Alcotest 2
7110 MK III-C (Alcotest), while retaining jurisdiction of the
case. After conducting a Daubert-Lanigan hearing, a District
Court judge found that the Alcotest was capable of producing
scientifically reliable breath test results, and denied the
defendant's motion to exclude this evidence at his trial for
operating a motor vehicle while under the influence of alcohol.
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)
(Daubert); Commonwealth v. Lanigan, 419 Mass. 15 (1994). The
judge returned his findings to this court, and both sides filed
supplemental briefing, prior to renewed oral argument before us.
The defendant now contends that the judge abused his discretion
in finding that the Alcotest satisfies the Daubert-Lanigan
standard for the admissibility of scientific evidence. We
conclude that there was no abuse of discretion and affirm the
denial of the defendant's motion to exclude the Alcotest
results.
1. Background. a. Prior proceedings. In 2008, a
District Court complaint issued charging the defendant with
operating a motor vehicle while under the influence of liquor
(OUI), in violation of G. L. c. 90, § 24 (1) (a) (1). Before
trial, the defendant moved to exclude admission of breath test
evidence generated by the Alcotest; he argued that errors in the
device's computer source code, and other deficiencies, rendered 3
its results unreliable.1 A District Court judge denied the
defendant's motion without conducting a Daubert-Lanigan hearing.
The judge determined that because the Alcotest utilizes infrared
spectroscopy technology, and the Legislature had prescribed a
statutory and regulatory framework for the admissibility of
"infrared breath-testing devices," see G. L. c. 90,
§§ 24 (1) (e), 24K; 501 Code Mass. Regs. §§ 2.00 (2006), the
results of an infrared breathalyzer are admissible, pursuant to
the statute, without the need for a hearing to determine the
reliability of these tests.
The defendant then filed a petition pursuant to G. L.
c. 211, § 3, in the county court, challenging the denial of his
motion to exclude the Alcotest test results. A single justice
denied the defendant's request for interlocutory relief, and the
case proceeded to a jury trial. At trial, the defendant did not
introduce evidence challenging the reliability of the Alcotest
breathalyzer results. The jury found the defendant guilty of
operating a motor vehicle while under the influence of alcohol
and operating a motor vehicle with a blood alcohol level of or
exceeding 0.08 per cent. See G. L. c. 90, § 24 (1) (a) (1).
The defendant appealed from his convictions, and we allowed his
1 The Chief Justice of the District Court specially assigned the case, and sixty-one other cases in which OUI defendants challenged the reliability of the Alcotest's source code, to a particular judge of that court. 4
application for direct appellate review. See Camblin I, 471
Mass. at 640-644.
In Camblin I, supra, the defendant primarily challenged the
reliability of the Alcotest on the ground of asserted errors in
the source code for its computer programs. In doing so, the
defendant relied upon, among other things, affidavits from two
expert witnesses and a report that he had submitted in support
of his motion to exclude. One of the experts averred that he
had scanned the Alcotest's source code, utilizing an "industry
standard source code analysis tool," and had found more than
7,000 errors and 3,000 warning signals. Id. at 651. A
different expert averred that the Alcotest is incapable of
measuring accurately the amount of ethanol in a breath sample
because the device does not exclude other "interfering
substances" that might be present in the sample.2 Id. at 652-
2 According to the National Safety Council, an "interfering substance" is a "non-ethanol substance" able "to produce a significant response on any breath alcohol testing instrument." To qualify as an interfering substance, the substance must:
"1. Be a volatile organic compound capable of appearing in the breath of a living, conscious human being.
"2. Be present in sufficiently high concentration to be measured by the instrument after a 15 to 20 minute pretest observation period.
"3. Be able to produce a response on the instrument that is indistinguishable from ethanol."
National Safety Council, Committee on Alcohol and Other Drugs, 5
653. In addition, the report that the defendant submitted
suggested that the calibration test used with the Alcotest does
not ensure accurate results. Id. at 654. We remanded the
matter to the District Court for a hearing to consider three
issues: (1) the reliability of the Alcotest source code;
(2) whether the Alcotest is capable of testing exclusively for
ethanol; and (3) whether any source code errors affect the
ability of the Alcotest to calculate a subject's blood alcohol
content (BAC). Id. at 651-655.
b. Proceedings on remand. On remand, the judge conducted
a Daubert-Lanigan hearing, at which experts for the defendant
and the Commonwealth testified about the reliability of the
Alcotest. After the hearing, the judge issued a decision
containing his comprehensive findings of fact, and remitted them
to this court. With respect to the defendant's challenge to
reliability of the source code, the judge concluded that
"despite the minor flaws in the source code, the Alcotest
provides a reliable measure of BAC." These minor source code
flaws, he found, "pose a very remote chance of returning a
falsely high BAC result, on the magnitude of a million to
one. . . . The error rate here is well within an acceptable
range necessary to make the Alcotest BAC results scientifically
Report on the Specificity of Breath Alcohol Analyzers (Feb. 22, 2010). 6
reliable."
In this appeal, the defendant has chosen not to pursue his
arguments concerning the source code as the primary basis for
the asserted lack of reliability in the Alcotest. Rather, the
current focus of the defendant's challenge to the reliability of
the Alcotest is that it cannot distinguish ethanol from other
"interfering" substances that might be present in a breath
sample. The following facts were adduced at the Daubert-Lanigan
hearing.
The Alcotest is an evidential breath-testing device
manufactured by Draeger Safety Diagnostics, Inc. (Draeger).
Draeger describes the Alcotest as a "dual sensoric instrument"
because it utilizes both infrared spectroscopy and
electrochemical fuel cell sampling to analyze alcohol content in
a breath sample. The subject blows air into the device through
a tube connected to a chamber. An infrared light source at one
end of the chamber generates energy in the 9.5 micron range,3 and
a detector on the opposite end of the chamber receives the
energy from the infrared source. Because infrared energy is
absorbed by ethanol molecules, any such molecules that are
present in a breath sample effectively "soak up" the infrared
energy, and that portion of it does not reach the detector. The
Alcotest is designed to measure a subject's breath alcohol
3 A micron is one millionth of a meter. 7
content based on the amount of infrared energy that reaches the
detector as compared to the amount of energy detected when the
chamber has been cleared and is filled simply with ambient air.
In other words, the reduction in infrared energy (which has been
absorbed by the ethanol molecules) from one end of the chamber
to the other is equivalent to the concentration of alcohol
present in the chamber.
In a dual-sensor Alcotest device, at the same time that the
infrared energy is passing through the main chamber, a small
portion of the breath sample enters a fuel cell sensor for a
second measurement of breath alcohol. The fuel cell is an
electrochemical device that essentially operates like a battery.
It generates an electrical current from energy produced by a
chemical reaction between any ethanol and the oxygen contained
within the breath sample. The fuel cell is designed to measure
the "footprint" of the chemical reaction and to compare that
footprint to a baseline footprint created by a known ethanol
sample. To produce a valid BAC test result, the infrared energy
reading and the fuel cell reading must be in agreement with one
another. The Alcotest reports only the infrared reading to the
operator; the fuel cell reading is intended to operate as a
double check on the accuracy of the infrared measurement.
Both sides presented expert witness testimony on the
question whether the Alcotest is capable of testing exclusively 8
for ethanol, while excluding interfering substances. The
defendant introduced testimony by Dr. Donald J. Barry, Ph.D., an
astronomer with a substantial background in infrared
spectrometry technology, as well as a background in chemistry.
Barry testified that, where interfering substances are present,
the Alcotest is incapable of testing exclusively for ethanol,
and therefore its results can be tainted by the presence of
interfering substances in the sample. Barry explained that the
Alcotest's infrared spectroscope identifies a carbon-oxygen
molecule that is emitted at a 9.5 micron wavelength. Several
organic compounds other than ethanol, including acetone4 and
methanol, also emit energy within the 9.5 micron range of the
electromagnetic spectrum, and would similarly be detected by the
Alcotest's spectroscope. Barry concluded that, as a result, the
Alcotest could not reliably isolate and identify ethanol in a
subject's breath to the exclusion of other interfering
substances sharing a similar molecular structure.
Barry was not familiar with the particular fuel cell
technology used in the Alcotest. He opined generally, however,
that, for this type of application, fuel cells are a suspect
measuring technology for several reasons, including diminishing
performance over time. He testified that he was aware of no
4 Acetone is one of the most significant interfering substances, as it is naturally produced in the body, and can be found in people who are diabetic or who are dieting. 9
scientific support for Draeger's assertion that the Alcotest
fuel cell sensor is independently capable of detecting alcohol
as opposed to other compounds.
The Commonwealth introduced expert testimony by Hansueli
Ryser, a Draeger vice-president with a thirty-four year
background in engineering evidential breath test devices. Ryser
had been involved in the engineering and development of the
Alcotest. He testified that there were two primary means by
which the device distinguished between ethanol and other
substances that absorb infrared energy within a narrow range of
the 9.5 micron wavelength. First, most interfering substances
actually absorb slightly different wavelengths of infrared
energy, or at slightly different intensities. The Alcotest's
infrared measurement system identifies small differences in the
absorption of energy and thereby is able to distinguish most
nonethanol substances. In addition, while most breathalyzers
use a frequency of 3.4 microns, the Alcotest was designed
specifically to operate at a frequency of 9.5 microns in order
to account for the "strong overlap of the [infrared] spectra"
between acetone and ethanol at 3.45 microns. According to Ryser,
at 9.5 microns one "would not see any interference that the
acetone would add to the ethanol reading." The judge noted,
5 A frequency of 3.4 microns had been common in earlier breathalyzer machines. 10
"Apparently, it is almost impossible to distinguish ethanol and
acetone at 3.4 microns, which is why Draeger abandoned its
reliance on that range in earlier machines."
Ryser agreed that some substances, like methanol, do absorb
energy at a similar rate and wavelength to ethanol.
Nonetheless, Ryser stated that differences in energy absorption
rates would allow the Alcotest to distinguish between the two
substances, due to the substances' differences in intensity.
Second, Ryser testified that the fuel cell sensor in an
Alcotest machine functions as a fail-safe to distinguish between
ethanol and other interfering substances. He noted that the
fuel cell measures the flow of electrical current produced by
the chemical reaction and registers a "kinetic reactivity"
"footprint" for the breath sample. The Alcotest compares this
footprint to the footprint created by the flow of electrical
current generated by the known ethanol sample contained in a
calibrated simulator solution. The Alcotest identifies
interfering substances based on whether there are disparities
between the two footprints. Finally, the Alcotest compares the
infrared spectrometry and electrochemical fuel cell test
results. If the two components produce substantially different
measurements of a subject's BAC level, the Alcotest is designed
to flag the differences as caused by an interfering substance,
and thereafter to abort the test. 11
After the hearing,6 the judge concluded that the Alcotest
"reliably distinguishes ethanol from other substances found in
human breath, and therefore returns reliable BAC results based
solely on ethanol." He determined that there was no evidence
"of any substance that (1) could be present in human breath; (2)
could be absorbed at the 9.5 micron range at the same intensity
level as ethanol; and (3) . . . would also produce the same
kinetic reactivity footprint in the fuel cell as ethanol."
2. Discussion. a. Standard of review. The admission of
scientific testimony is governed by what has come to be known as
the Daubert-Lanigan standard. Commonwealth v. Senior, 433 Mass.
453, 458 (2001), citing Daubert, 509 U.S. at 585-595, and
Lanigan, 419 Mass. at 25-26. See Mass. G. Evid. § 702 &
comments (2017). The judge, acting as gatekeeper, is
responsible for "mak[ing] a preliminary assessment whether the
theory or methodology underlying the proposed testimony is
sufficiently reliable to reach the trier of fact." Commonwealth
v. Shanley, 455 Mass. 752, 761 (2010). We review a judge's
decision to admit expert testimony as reliable under the abuse
of discretion standard. Id. at 762, citing Canavan's Case, 432
6 The judge generally credited Dr. Donald J. Barry's expert testimony. He found that Dr. Barry's relative lack of knowledge about fuel cell technology, and unfamiliarity with the use of fuel cells to detect substances such as ethanol, went to the weight of his opinion, rather than to admissibility. The judge found that Hansueli Ryser's "experience with and knowledge of . . . dual sensor technology is ample and compelling." 12
Mass. 304, 312 (2000).
In Lanigan, 419 Mass. at 25-26, we adopted, in part, the
United States Supreme Court's reasoning in Daubert, governing
the admissibility of expert testimony based on a scientific
theory. We did not, however, entirely abandon our prior test to
determine the admissibility of scientific evidence, which
focused on "whether the community of scientists involved
generally accepts the theory or process." Lanigan, supra at 24,
quoting Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Rather, we held that "general acceptance in the relevant
scientific community will continue to be the significant, and
often the only, issue," but "that a proponent of scientific
opinion evidence may demonstrate the reliability or validity of
the underlying scientific theory or process by some other
means." See Lanigan, supra at 26.
Under the Daubert-Lanigan standard, a judge considering a
motion to introduce expert testimony initially considers a
nonexclusive list of five factors. See Commonwealth v. Powell,
450 Mass. 229, 238 (2007). Among these factors are "whether the
scientific theory or process (1) has been generally accepted in
the relevant scientific community; (2) has been, or can be,
subjected to testing; (3) has been subjected to peer review and
publication; (4) has an unacceptably high known or potential
rate of error; and (5) is governed by recognized standards." 13
Id. A judge has "broad discretion" to weigh these factors and
to apply varying methods to assess the reliability of the
proffered testimony, depending upon the circumstances of a
particular case; in some instances, certain factors may be
inapplicable. See Palandjian v. Foster, 446 Mass. 100, 111
(2006). "Differing types of methodology may require judges to
apply differing evaluative criteria to determine whether
scientific methodology is reliable." Canavan's Case, 432 Mass.
at 314 n.5. Because the admissibility of expert testimony is a
preliminary question of fact, the proponent's burden of proof to
demonstrate the reliability of the expert opinion is by a
preponderance of the evidence. See Commonwealth v. Rosenthal,
432 Mass. 124, 126-127 (2000), citing Care & Protection of
Laura, 414 Mass. 788, 792 (1993). See also Mass. G. Evid.
§ 104(a) (2017) (in deciding preliminary questions of fact court
is not bound by rules of evidence with exception of privilege).
b. Reliability of the Alcotest. Turning to the judge's
decision in this case, we consider whether he abused his
discretion in finding that the Alcotest breathalyzer had been
subject to sufficient independent testing to establish its
reliability. In reaching his decision that the reliability of
the Alcotest had been sufficiently established, the judge relied
upon testimony by Ryser and testing conducted by two agencies:
the National Highway Traffic Safety Administration (NHTSA), and 14
the Organisation Internationale de Métrologie Légale (OIML), an
agency that regulates the use of alcohol breath-testing devices
in Europe. The judge also noted that the Alcotest had been
approved by the Australian International Laboratory of
Spectroscopy and the Forensic Science Academy in Ottawa, Canada.
The judge's reliance on NHTSA testing did not constitute an
abuse of discretion. "NHTSA certification is widely accepted by
courts as evidence of a device's reliability." United States v.
Ahlstrom, 530 Fed. Appx. 232, 239 (4th Cir. 2013), citing
California v. Trombetta, 467 U.S. 479, 489 & n.9 (1984), and
United States v. Brannon, 146 F.3d 1194, 1196 (9th Cir. 1998).
See People v. Vangelder, 58 Cal. 4th 1, 33-34 (2013), cert.
denied, 134 S. Ct. 2839 (2014) (noting that devices which meet
NHTSA evidential breath-testing specifications produce
sufficiently reliable results within California's regulatory
scheme).
Indeed, under G. L. c. 90, § 24K, the Secretary of Public
Safety is required to promulgate regulations regarding
"satisfactory methods, techniques and criteria" for the use of
infrared breath-testing devices. In accordance with this
statutory mandate, the Executive Office of Public Safety
promulgated 501 Code Mass. Regs. §§ 2.00; this regulation
requires that approved breathalyzers appear on the NHTSA's
published conforming products list for evidential breath-testing 15
equipment. See 501 Code Mass. Regs. § 2.38 (2006).7 The
Alcotest appears on the NHTSA's published list as having met
specific performance criteria. See 58 Fed. Reg. 48,705, 48,708
(1993) (NHTSA certification of Alcotest breathalyzer as
conforming product). As part of its certification process,
NHTSA tested whether, and to what extent, the Alcotest's
infrared and fuel cell sensors were able to detect interfering
substances. Thus, we discern no abuse of discretion in the
judge's decision to rely on the agency statutorily required to
certify breathalyzers in the Commonwealth.
In reaching his determination that "the Alcotest [infrared]
and [electrochemical] features were tested independently for
their ability to detect non-ethanol substances and both
components met the NHTSA specifications," the judge relied on
testimony by Ryser, which he credited explicitly, concerning the
two-test comparison standard that the Alcotest employs. The
judge noted also that each of the Alcotest's two sensors have
been found compliant with the NHTSA specifications when operated
individually. The judge noted that this independent, dual
testing capability further "assures the device's ethanol
specificity testing capability." If the results from either of
the tests differ by more than a specified threshold, the test is
rejected and testing ceases. At the time that the evidentiary
7 As it then existed. 16
hearing was held on remand, no other breathalyzer used a dual-
sensor system.
Likewise, the judge's reliance on the OIML test
specifications and certifications was within his discretion.
The OIML's certification requirements generally are viewed as
being much more stringent than those applicable in the United
States. Ryser explained that, because of the wavelength at
which it operates, and the precision of its sensor, the Alcotest
was even able to meet the certification requirements of the OIML
"draft three" set of specifications. The draft three
certifications were so stringent that the testing agency itself
decided to remove some of those requirements from the "draft
four" specification level, the most recent set of certification
standards. In large part, the reduced stringency involved the
use of a smaller number of interfering substances that a
breathalyzer must be able to handle, rather than the vastly
expanded list of substances in the draft three version. The
Alcotest also has been examined and certified on this less
stringent draft four standard.
In sum, the judge was warranted in crediting Ryser's
testimony that the NHTSA and the OIML certifications further
demonstrated that the Alcotest was capable of testing
exclusively for ethanol.
The defendant contends that the specification testing 17
conducted by the NHTSA and the OIML was deficient because
neither agency utilized mixed samples in evaluating the
Alcotest's ability to distinguish between ethanol and
interfering substances. According to the defendant's expert
witness, adequate testing requires challenging the device with a
wide variety of "physiologically important" substances, as well
as studying how the properties of the fuel cell change over
time. We discern no error. The judge was well within his
discretion in relying upon the NHTSA and OIML reports, based on
their standard and widely accepted protocols regarding mixed
sample testing. While the judge generally credited Barry's
testimony, there was no abuse of discretion in the judge's
decision to reject Barry's specific criticisms of the testing
methodology. See Canavan's Case, 432 Mass. at 312 (judge is
qualified to determine questions of credibility concerning
proposed scientific expert testimony).
We turn to whether the technology underlying the Alcotest
has been subjected to peer review and publication, another of
the factors in the Daubert-Lanigan analysis. The peer-review
prong of the Daubert-Lanigan standard serves a function similar
to the general acceptance test; in essence, it requires a judge
to determine whether the scientific theory underlying the
disputed evidence has been accepted by the relevant scientific
community. See Commonwealth v. Senior, 433 Mass. 453, 460-461 18
(2001). At the hearing in this case, the Commonwealth submitted
a single peer-reviewed article that surveyed the history of
breath-testing devices; the article mentioned that the
Alcotest's use of an infrared detector operating at 9.5 microns
and an electrochemical fuel cell "is a highly desirable feature
for medicolegal purposes."8 The judge found that support for the
peer-review factor of the Daubert-Lanigan analysis "is
admittedly thin."
On appeal, the Commonwealth submitted to this court a
number of additional peer-reviewed articles addressing the
reliability of the Alcotest.9 We have considered scientific
studies that arise following the denial of initial Daubert-
Lanigan hearings where necessary to ensure an accurate decision
concerning the reliability of scientific evidence. See
8 See Jones, Measuring Alcohol in Blood and Breath for Forensic Purposes -- A Historical Review, 8 Forensic Sci. Rev. 13, 31, 36 (June 1996). 9 See Hodgson & Taylor, Evaluation of the Dräger Alcotest 7110 MKIII Dual C Evidential Breath Alcohol Analyzer, 34 Can. Soc. Forensic Sci. J. 95, 101 (2001) (Alcotest able to distinguish other potentially interfering substances, including acetone and methanol, from ethanol); Laakso, Pennanen, Himberg, Kuitunen, & Himberg, Effect of Eight Solvents on Ethanol Analysis by Dräger 7110 Evidential Breath Analyzer, 49 J. Forensic Sci., no. 5 (Sept. 2004) (Alcotest was able to detect most of potential interfering common substances, such as acetone, in concentration levels which did not significantly affect ethanol analysis, but significant concentration of chemical propanol, which can only be obtained by drinking high amounts of denatured alcohol, interfered with ethanol analysis). 19
Commonwealth v. Pytou Heang, 458 Mass. 827, 837-840 (2011)
(citing subsequent report on ballistics evidence to further
support judge's decision); Commonwealth v. Gambora, 457 Mass.
715, 724-727 (2010) (considering newly released report in appeal
challenging fingerprint evidence); Commonwealth v. Fowler, 425
Mass. 819, 826-828 (1997) (relying on recently released report
to resolve judge's concerns about deoxyribonucleic acid
analysis). We also have considered scientific studies that were
not before a lower court judge to further our understanding of
the social science underlying a legal ruling. See, e.g.,
Commonwealth v. Johnson, 473 Mass. 594, 600 (2016); Commonwealth
v. Crayton, 470 Mass. 228, 239 n.15 (2014); Doe, Sex Offender
Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass.
612, 622 (2010); Commonwealth v. Harris, 443 Mass. 714, 737
(2005). We see no reason to ignore the peer-reviewed articles
submitted by the Commonwealth, which indicate that the Alcotest
is capable of distinguishing between ethanol and common
interfering substances.
In addition to considering whether the Alcotest had been
subject to adequate testing and peer review, the judge also
found "abundant evidence that the Alcotest and its underlying
technology" had satisfied the other nonexclusive factors in the
Daubert-Lanigan analysis: it has been generally accepted in the
scientific community, it does not have an unacceptably high 20
known or potential rate of error, and it is governed by
recognized standards. There was no abuse of discretion in the
judge's determination that these factors had been met.
Finally, we briefly address an issue raised by the
defendant regarding general acceptance in the scientific
community.10 The defendant contends that the Alcotest could not
have been generally accepted in the scientific community at the
time of his trial; he points out that the device uses
proprietary technology, including its computer source code, and
that Draeger exclusively sells its breathalyzers to law
enforcement agencies. He further argues that the approval of
10 Draeger offers an optional sensor that measures a subject's breath temperature as a means to assist in evaluating breathalyzer test results. Massachusetts law enforcement agencies declined to purchase this option. The defendant contends that the absence of a temperature sensor diminishes the accuracy of the Alcotest, and further demonstrates that it is not reliable. The defendant did not raise this issue in his original appeal from the denial of his motion to exclude the breath test results, and we did not ask the judge to consider it on remand. The judge made no factual finding regarding the significance of installing a breath temperature sensor.
Because the defendant did not raise the issue in his original appeal, we consider it to be waived. See Commonwealth v. Pisa, 384 Mass. 362, 365-367 (1981). We also are persuaded by the New Jersey Supreme Court's holding in State v. Chun, 194 N.J. 54, 105-106, cert. denied, 555 U.S. 825 (2008), that there is insufficient scientific study on the impact of a breath temperature measurement on the accuracy of the results. The New Jersey Supreme Court concluded in that case that the absence of a temperature sensor did not render the Alcotest unreliable. Id. at 107-108. The court commented that, to the extent that variation in breath temperature has an effect on breathalyzer test results, this went to the weight of the evidence and not to its admissibility. See id. at 108-109. 21
the Alcotest for use in other countries and in other
jurisdictions in the United States does not indicate general
acceptance, because these governmental actors do not constitute
scientific communities for purposes of the Daubert-Lanigan
standard. We do not agree. Governmental standard-setting
agencies, such as the NHTSA, routinely conduct investigations,
evaluate new and developing technologies, and set relevant
scientific standards. See Powell, 450 Mass. at 239-240, citing
Commonwealth v. Patterson, 445 Mass. 626, 643 (2005).
3. Conclusion. The order denying the motion to exclude
evidence as scientifically unreliable is affirmed. The judgment
of conviction is also affirmed.
So ordered.