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Commonwealth v. Hanuschak

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 30, 2012
11-P-1464 (Mass. Apr. 30, 2012)

Opinion

11-P-1464

04-30-2012

COMMONWEALTH v. NIKOLAS HANUSCHAK.


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

The Commonwealth appeals from a District Court judge's allowance of the defendant's motion for a required finding of not guilty after a jury returned a verdict of guilty of operating a motor vehicle under the influence of intoxicating liquor with a blood alcohol level of 0.08 or more. We reverse.

Background. On September 17, 2010, at approximately 11:35 P. M., the defendant was stopped at a 'sobriety checkpoint.' The defendant was asked to perform field sobriety tests. In the opinion of the officer who conducted the tests, the defendant failed the tests, and he was, consequently, arrested for operating under the influence of alcohol. Two breathalyzer tests were administered approximately one-half hour after the defendant was stopped, which showed the defendant's blood alcohol level to be 0.11 percent.

At trial, the case was submitted to the jury under the theories of operating under the influence of intoxicating liquor and operating with a blood alcohol level of 0.08 or more. The jury found the defendant guilty of operating with a blood alcohol level of 0.08 or more. After the verdict, the trial judge allowed the defendant's motion for a required finding of not guilty on the basis that the Commonwealth failed to present expert testimony about extrapolation between the time the defendant was operating his vehicle and the time the breathalyzer tests were administered.

Discussion. In reviewing a ruling on a motion for a required finding of not guilty, we analyze the evidence in the light most favorable to the Commonwealth to determine whether sufficient evidence has been presented to permit the jury to find the existence of the essential elements of the crime charged beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).

It is a crime under G. L. c. 90, § 24(1)(a)(1), to operate a motor vehicle on a public way while under the influence of intoxicating liquor. The Commonwealth may establish that a defendant was operating under the influence 'by either of two methods.' Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 20 (2011). It can (1) 'introduce evidence of a breathalyzer reading of .08 percent or greater and request the judge to instruct the jury that, if they believed the accuracy of that measure, it conclusively established operation under the influence,' or (2) 'introduce percipient evidence of the defendant's appearance and conduct and a breathalyzer result of .08 percent or greater without a request for an instruction that such a reading, if believed, conclusively established operation under the influence.' Id. at 20-21. If the Commonwealth proceeds under the second theory only, it must 'support the .08 percent result with expert testimony explaining the relationship between that measure and impaired operation.' Id. at 21.

The Commonwealth proceeded against the defendant, and the judge instructed the jury on the Commonwealth's burden of proof, under both theories. The jury found the defendant not guilty under the impairment theory, but guilty of operating with a blood alcohol level of .08 percent or higher. After the verdict, the judge made the following ruling:

'[P]rior to the verdict and prior to the close of the case you had raised a motion for a required finding of not guilty, and you had not delineated a theory, but the Court, going into the jurors' deliberations and thinking about the state of the evidence as it went to the jury and after listening to my own instructions, after -- you know, the instructions actually have power and meaning -- the court has serious concerns about the level of proof that was supported with the .11. There was no expert testimony about extrapolation between operation time and when the blood alcohol level, and after the jury finding insufficient evidence to establish impairment, the court has significant concerns about the state of the evidence for that prong, and therefore, I'm going to set aside the jury's verdict and enter a required finding of not guilty on the operating with a blood alcohol level of.08 or greater.'

It is clear that the judge set aside the jury's verdict because the Commonwealth did not offer expert testimony on the issue of retrograde extrapolation with respect to the defendant's blood alcohol level at the time of operation. Such testimony, however, is not required in a prosecution for operating a motor vehicle with a blood alcohol level of 0.08 or more if the breathalyzer test was administered within a reasonable amount of time after the driver's last operation of a motor vehicle. Commonwealth v. Colturi, 448 Mass. 809, 811 (2007). In this case, there was an interval of approximately one-half hour between the defendant's operation of his motor vehicle and the administration of the breathalyzer tests. This interval was reasonable under the Colturi standard, see id. at 816-817, and does not form a legal basis for the allowance of a motion for required finding of not guilty. The judge's ruling setting aside the verdict was therefore error. The judgment is reversed, the verdict is reinstated, and the case is remanded for further proceedings on the subsequent offender portion of the complaint.

So ordered.

By the Court (Vuono, Grainger & Carhart, JJ.),


Summaries of

Commonwealth v. Hanuschak

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 30, 2012
11-P-1464 (Mass. Apr. 30, 2012)
Case details for

Commonwealth v. Hanuschak

Case Details

Full title:COMMONWEALTH v. NIKOLAS HANUSCHAK.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 30, 2012

Citations

11-P-1464 (Mass. Apr. 30, 2012)