Opinion
10-P-1568
02-17-2012
COMMONWEALTH v. JULIE LEWIS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge in the District Court convicted the defendant of operating a motor vehicle while under the influence of liquor. Prior to trial, the defendant moved to suppress the results of two breathalyzer tests, claiming that because she had not been observed for a period of fifteen minutes before the tests were administered, see 501 Code Mass. Regs. § 2.55 (2006), the test results were unreliable. On appeal, the defendant contends that the judge erred in denying her motion to suppress. She further contends that without the breathalyzer results, the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. We affirm.
The judge also found the defendant responsible for a speeding violation and not responsible for a marked lanes violation. As the speeding charge was placed on file, it is not before us. See Commonwealth v. Molligi, 70 Mass. App. Ct. 108, 109-110 (2007).
We summarize the facts found by the motion judge, supplemented with undisputed testimony from the suppression hearing. See Commonwealth v. DePeiza, 449 Mass. 367, 368 (2007). On July 15, 2007, '[a]t a time after 11:00 P. M.,' the defendant was stopped by a State trooper on Route 291 in Springfield for driving erratically (speeding and crossing over the fog line). Upon approaching the defendant, the trooper noticed the smell of alcohol and observed that the defendant had glassy eyes. The defendant admitted that she had consumed a couple of shots at 9:30 P. M. that evening. After the defendant failed two out of three field sobriety tests, she was arrested and transported to the State police barracks where the same trooper administered two breathalyzer tests, the first at 12:06 A. M. and the second at 12:09 A. M. The results showed a blood alcohol level of .23 percent.
As the date in the judge's decision appears to be a typographical error, we use the date supported by the record and the parties' brief.
According to the form printed by the breathalyzer machine after the test, the defendant was first observed at 11:50 P. M. The trooper testified that he entered that time (11:50) as 'the time I first observed [the defendant] within the barracks.' In addition, the trooper explained that once a time is entered into the breathalyzer machine, 'the machine will not let me start the test until a 15-minute time span has elapsed.' The judge, however, did not credit the trooper's testimony on the subject of time. This was in part due to inconsistencies in the trooper's testimony. Also, the judge found that it was possible to manually set the breathalyzer machine so that a breath test could be administered without waiting for fifteen minutes.
The judge illustrated this point with the following example, 'if the operator turns on the machine and sets the time at 2:00, it will not operate until 2:15. If it was actually 2:10, but the operator set the machine at 2:00, it would operate in 5 minutes.'
Although the judge rejected the trooper's testimony as to the timing of events, he did find that the trooper was with the defendant from the time of the traffic stop until the breathalyzer tests were given. The judge also implicitly credited the trooper's testimony that no contaminating event had occurred during that time. A contaminating event occurs when a person brings 'any substance into his mouth, such as food [or] drink, or regurgitat[es] by burping or by hiccoughing.' Commonwealth v. Pierre, 72 Mass. App. Ct. 230, 231- 232 (2008).
The judge correctly identified the issue before him, which was whether there had been a violation of 501 Code Mass. Regs. § 2.55 (2006), and, if so, what effect did the violation have on the admissibility of the breath test results. As pertinent here, the then-current regulation provided as follows:
'The individual under arrest should be observed by the breath testing operator for at least 15 minutes prior to the administration of the test.'
The regulation, now 501 Code Mass. Regs. § 2.13(3) (2010), was amended in 2010 and now provides that the officer administering the breathalyzer test 'shall observe the arrestee for no less than 15 minutes immediately prior to the administration of the breath test.'
The judge concluded that even though there had not been a fifteen-minute period of observation, the test results were admissible because there had been 'sufficient observation to ensure a reliable breath test.' Noting that the regulation recommends but does not require a fifteen-minute period of observation, the judge determined there had been substantial compliance with the regulation and, consequently, he denied the motion to suppress.
The defendant challenges the judge's finding that she had been observed for a sufficient period of time before the breath test was administered. She argues that because the judge rejected the officer's testimony on the subject of time, there is no legitimate basis for the judge's conclusion that there had been substantial compliance with the regulation. We disagree.
The Commonwealth's response to this argument is to claim that the judge misunderstood the trooper's testimony as to how the breathalyzer machine operates. According to the Commonwealth, the breathalyzer machine will not operate for fifteen minutes after a first-observed time is entered, thereby ensuring a pretest observation period of fifteen minutes. The Commonwealth contends that to the extent the judge found otherwise, his findings are clearly erroneous. Because our decision does not rest on the mechanics of the breathalyzer machine, we express no view on this issue except to note that the testimony regarding how the machine works was confusing and inconsistent.
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The purpose of the fifteen-minute waiting period is to ensure that the defendant has not brought any substance into her mouth that would have a contaminating impact on the accuracy of the results. Pierre, supra at 232. The record amply supports the judge's finding that the trooper had observed the defendant at least from the time she arrived at the barracks (sometime before 11:50 P. M.) until the trooper administered the tests at 12:06 A. M. and 12:09 A. M., and that no contaminating event had occurred during that time. In these circumstances, we agree with the motion judge that the regulation was not violated. As the judge correctly observed, the then-current regulation does not explicitly require a fifteen-minute period of observation. Nor does the regulation require that the defendant be observed in any particular location. Ibid. ('We believe that the regulation does not preclude observation of an arrestee by the breathalyzer operator outside the breathalyzer room').
Finally, as we stated in Pierre, 'in the vast majority of cases, weakness in this evidence is not a ground for suppression, as it would instead go to the weight of the evidence and not its admissibility.' Id. at 235. Unlike Pierre, this is one of those cases that falls within that vast majority. We therefore conclude that the motion judge did not err in denying the defendant's motion to suppress. Because the breath test results were properly admitted at trial, the evidence was sufficient to support the conviction under Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).
Judgment affirmed.
By the Court (Green, Vuono & Milkey, JJ.),