Opinion
13-P-1527
04-09-2015
COMMONWEALTH v. WESLEY J. BAPTISTE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his convictions of operating a motor vehicle while under the influence of intoxicating liquor and negligent operation of a motor vehicle. He claims that the trial judge abused his discretion when he denied the defendant's motion in limine to exclude the results of a breathalyzer test. We affirm.
The defendant contends that the breathalyzer test result should have been excluded because the evidence did not show that the trooper who performed the breathalyzer test observed him for fifteen minutes before performing the test. See G. L. c. 90, § 24K; 501 Code Mass. Regs. § 2.13(3) (2010). See also Commonwealth v. Zeininger, 459 Mass. 775, 791-792 (2011); Commonwealth v. Pierre, 72 Mass. App. Ct. 230, 231-232 (2008). The applicable regulations set forth a fifteen-minute observation period for purposes of ruling out mouth alcohol, burping, vomiting, or other factors that could confound the testing process. Ibid.
The trooper who performed the breathalyzer test testified that he sat with the defendant in the booking room and observed him for fifteen minutes before the test was performed. The implied consent form was signed at 11:15 P.M. and the form indicates the test began at 11:37 P.M. The defendant maintains that this timeline is impossible, because the arrest report states that the stop occurred at approximately 11:00 P.M., the desk officer entered the time of the trooper's initial telephone call informing the barracks that he was bringing in a prisoner as 11:00 P.M., and it would have taken more than fifteen minutes to complete the field sobriety test and return to the barracks. The trooper testified that the time on the arrest report is approximate, that the desk officer may or may not have entered the time immediately after the call was received, and that he conducted the required observation. It was for the jury to weigh the evidence and resolve any conflicts presented by the evidence. See Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 437 (2006).
Judgments affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: April 9, 2015.