Walckner Law Office

​Attorney James Walckner​​

Under Massachusetts law, only results from breath test instruments using infrared technology are admissible.  Police officers must be certified to administer breath tests.


Since September 2003, all Massachusetts police departments utilize the same breath alcohol testing system (BATS) that consists of:

·         Draegar Alcotest 7110 MKIII-C infrared breath testing instrument
·         Draegar Alcotest CU34 simulator
·         Temperature probe
·         Laser scanner
·         Keyboard and printer. 

The Draegar breath testing instrument uses both infrared and fuel cell technology when analyzing a breath sample.  Because Massachusetts law only recognizes infrared analysis, only the infrared results are provided to the BATS operator.  Each system downloads all test result information to a central server in Chelsea, Massachusetts every ninety seconds, which minimizes opportunity for police tampering.

A 2015 Massachusetts Supreme Judicial Court ruling remanded a case to the district court to determine the reliability of the Draegar 7110 MKIII-C breath testing instrument.  The defense in that case raised several concerns the lower court must consider, including: whether the instrument tests a control sample using different source code than when testing a breath sample; and, whether the infrared light absorbed by alcohol molecules is also absorbed by other substances, causing a skewed test result.  Several Distriuct Attorneys suspended the introduction of breath test evidence until the reliability is better established.  This recent case demonstrates the evolving practice and technical nature of OUI defense.

Preliminary Breath Tests (PBT)

A Preliminary (also known as “Portable”) Breath Test is used roadside by a police officer to obtain an analysis of a driver’s breath.  This device is intended as a “fourth and final field sobriety test.”  It is important to understand that the results of this test can skew a police officer’s opinion as to whether someone’s ability to drive is impaired; however, the PBT utilizes a fuel cell technology that, while considered reliable, is not recognized by Massachusetts law.  An OUI defense attorney can generally suppress the PBT result and prevent it from being admitted as evidence.

​Chemical Breath Tests