Opinion
12-P-484
12-11-2012
COMMONWEALTH v. TARAS KURILO.
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
This is an interlocutory appeal by the Commonwealth from the allowance of the defendant's motion to suppress by a judge of the District Court in connection with charges brought against the defendant for operating a motor vehicle while under the influence of intoxicating liquor (second offense), negligently operating to endanger, and speeding. The Commonwealth contends that the judge erred in suppressing the defendant's breathalyzer test results based on a perceived failure of the relevant persons to comply strictly with a regulation requiring either the arresting officer or breathalyzer operator to 'document' the consent of the defendant to the breathalyzer test. Specifically, the Commonwealth avers that the police complied with the regulation, 501 Code Mass. Regs. § 2.14(1) (2010), when the arresting officer included in his official report that the defendant had been advised of his statutory rights and consented to breath testing; in the alternative, it argues that the regulation was substantially met by an officer who had certified the defendant's consent on a rights and consent form, but who was neither the arresting officer nor the breathalyzer operator. The defendant contends that the judge's ruling is correct and ought not be disturbed, claiming that strict compliance with this regulation is required, but was lacking here. As we conclude that suppression is not proper in these circumstances, we reverse the order of suppression. General Laws c. 90, § 24K, inserted by St. 1986, c. 620, § 17, directs the Secretary of Public Safety to 'promulgate rules and regulations regarding satisfactory methods, techniques and criteria for the conduct of such [breath] tests.' The code further provides:
The judge made the following endorsement of the motion:
'The Commonwealth did not strictly comply with 501 [Code Mass. Regs. §] 2.14(1) which is a prerequisite to admissibility. After argument, review of the stipulated documents and the [regulations], the motion is allowed.'
The defendant's motion, unsupported by affidavit, contended only that his consent was obtained by neither the arresting officer nor the breathalyzer test operator and thus was not properly documented. His motion did not otherwise contend that his consent was uninformed by proper advisement of his breathalyzer rights or that he did not actually consent to the testing.
In light of the apparent inoperability of Rehoboth's testing device, Rehoboth police Officer Warish transported the defendant to the police department of the neighboring town of Swansea for breathalyzer testing of the defendant; while he was neither the arresting officer nor the breathalyzer test operator, Warish certified the defendant's consent on a 'Statutory Rights and Consent Form.'
'(1) A breath test of an arrestee must be administered in accordance with [G. L.] c. 90, § 24K and 501 [Code Mass. Regs. §] 2.00. . . . (4) The breath test shall be valid and the results admissible in a court of law if it complies with 501 [Code Mass. Regs. §] 2.14.'501 Code Mass. Regs. § 2.13 (2010).
Central to this appeal, § 2.14(1) specifies that '[t]he arrestee's consent to a breath test shall be documented by the arresting officer or the BTO [Breath Test Operator],' but does not define the manner in which the consent is to be 'documented.' The Commonwealth contends that the defendant's consent was 'documented' when Rehoboth police Officer Bartucca, the arresting officer, wrote in his report that the defendant 'consented to taking a chemical breath test.' Alternatively, the Commonwealth avers that the defendant's consent was properly documented by a Rehoboth booking officer who had transported the defendant to Swansea for the testing and who obtained the defendant's signed consent on the 'Statutory Rights and Consent Form.'
As previously noted, 'document' is not among those terms defined under the relevant regulatory section. See 501 Code Mass. Regs. § 2.02 (2010). Moreover, the statute and applicable code provisions neither specify how an arrestee's consent is to be documented nor reference an approved form. See G. L. c. 90, § 24K; 501 Code Mass. Regs. § 2.14(1). Even were we to agree with the defendant that Officer Bartucca's conclusory notations in his report indicating that the defendant was advised of his rights under G. L. c. 263, § 5A, and 'consented to [the] breath test' was insufficient documentation of his consent, the Commonwealth nevertheless met its burden. The rights and consent form, signed by the defendant and Officer Warish -- notwithstanding that Officer Warish was neither the arresting officer nor the breathalyzer test officer -- complies with the approved 'satisfactory methods' for conducting breathalyzer tests pursuant to G. L. c. 90, § 24K.
The Supreme Judicial Court has stated that 'mere 'deviations from meticulous compliance' [with the regulation] . . . are inadequate to justify suppression of the results of the breathalyzer test.' Commonwealth v. Zeininger, 459 Mass. 775, 792, cert. denied, 132 S. Ct. 462 (2011) (citation omitted). See Commonwealth v. Kelley, 39 Mass. App. Ct. 448, 452-453 (1995) (holding the fact that an officer other than the test operator entered the defendant's breath test results into the device's use and maintenance log was not a sufficient ground on which to exclude the test results, notwithstanding the requirement of 501 Code Mass. Regs. § 2.57 [1987] that the test operator must do so). We similarly view the documentation of the defendant's consent here to be a mere 'deviation[] from meticulous compliance' that goes to the weight of the evidence, not its admissibility. Kelley, supra at 453. As such, the judge erred in allowing the defendant's motion to suppress.
Order allowing motion to suppress reversed.
By the Court (Rapoza, C.J., Brown, Fecteau JJ.),