Opinion
No. 11–P–1893.
2012-07-13
COMMONWEALTH v. John GRAY.
By the Court (TRAINOR, GRAINGER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the Commonwealth's interlocutory appeal from an order that suppressed evidence related to the defendant's arrest for operating a motor vehicle under the influence of alcohol, third offense, in violation of G.L. c. 90, § 24(1)( a )(1). On appeal, the Commonwealth claims that a critical finding of fact by the judge, which led him to allow the motion to suppress, was clearly erroneous. We agree and reverse.
“In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). Here, the sole reason offered by the judge for allowing the motion to suppress was that Lieutenant Paul D'Auteuil, the State trooper who did the initial screening at the sobriety checkpoint, asked the defendant questions about alcohol consumption and his whereabouts prior to observing any articulable signs of intoxication.
However, the judge's finding has no support in the record, and, in fact, is directly contradicted by the record. On both direct and cross-examination, D'Auteuil testified that after he greeted the defendant and informed him that the State police were conducting a sobriety checkpoint, D'Auteuil noticed that the defendant's eyes were bloodshot and glassy and his breath had a strong odor of alcohol. It was only after D'Auteuil made these initial observations that he asked the defendant from where he was coming and whether he had consumed any alcohol. See Commonwealth v. Murphy, 454 Mass. 318, 319–320, 323–329 (2009). Because the judge's crucial finding of fact is clearly erroneous, the order suppressing the evidence is reversed, and the matter is remanded to the District Court for further proceedings consistent with this memorandum and order.
In the conclusion to his order allowing the motion to suppress, the judge wrote that “the screening officer routinely asked questions [of] the operator such as where he/she was coming from and whether he/she had anything to drink prior to observing any articulable signs of possible intoxication.”
So ordered.