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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.
