Opinion
15-P-1330
05-30-2017
COMMONWEALTH v. Douglas S. MARTHA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Douglas S. Martha, was convicted of operating a motor vehicle while under the influence of intoxicating liquor, G. L. c. 90, § 24, following a jury trial. The defendant raised several grounds of error on appeal, but the Commonwealth concedes that the trial judge erred by admitting evidence of the defendant's blood alcohol content (BAC) without expert testimony explaining its significance under the theory submitted to the jury. We agree, and therefore reverse the defendant's conviction.
The defendant was also convicted of negligent operation of a motor vehicle, G. L. c. 90, § 24E, but he does not appeal this conviction.
General Laws c. 90, § 24(1)(a )(1) provides two theories under which a person may be convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI). See Commonwealth v. Colturi, 448 Mass. 809, 810 (2007). Under the "per se theory," the Commonwealth must prove that the defendant operated a motor vehicle on a public way with a BAC of .08 or greater. See Commonwealth v. Douglas, 75 Mass. App. Ct. 643, 651 (2009). Under the "impaired operation theory," the Commonwealth must prove that the defendant operated a motor vehicle on a public way while under the influence of intoxicating liquor, which may be supported with evidence of the defendant's BAC. Ibid.
G. L. c. 90, § 24(1)(a )(1), as amended through St. 2003, c. 28, § § 1, 21, 22, provides, in relevant part, "Whoever ... operates a motor vehicle [on a public way] with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor ... shall be punished...."
If the Commonwealth proceeds to trial under both theories, the defendant's BAC is admissible "without expert testimony establishing the significance of the [BAC] test level to the degree of intoxication or impairment of the defendant." Colturi, supra at 817. If the Commonwealth proceeds under the impaired operation theory only, however, "it must present expert testimony establishing a relationship between the [BAC] and intoxication" as a prerequisite to admissibility. Id. at 817-818.
In the present case, the Commonwealth apparently began trial proceeding under both theories of OUI. The judge admitted evidence of the defendant's BAC of .19 without expert testimony. Thereafter, the judge instructed the jury only on the impaired operation theory. The jury returned a general verdict.
The complaint charged the defendant under both theories, and the judge referred to both theories in the alternative when reading the charges to the jury at the beginning of the trial. The Commonwealth's opening statement largely referenced the impaired operation theory.
The judge instructed the jury as follows: "The defendant is charged under [G. L. c. 90, § 24 ].... And I quote, 'Whoever, upon any way in which the public has a right of access, operates a motor vehicle while under the influence of intoxicating liquor shall be punished....' In order to prove the defendant guilty of this offense, the Commonwealth ... must prove three things beyond a reasonable doubt. First, that the defendant operated the motor vehicle. Second, that he did operate that motor vehicle on the public way. And third, that while the defendant operated that motor vehicle, he was under the influence of liquor."
We agree with the Commonwealth that, although neither party objected to the lack of expert testimony accompanying the defendant's BAC under the theory presented to the jury, this error created a substantial risk of a miscarriage of justice. See Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 20-22 (2011) ; Douglas, supra at 653. The defendant's BAC "may have been the most compelling evidence of intoxication" and "[w]ithout it, the Commonwealth's evidence was ‘strong but not overwhelming.’ " Ibid., quoting from Commonwealth v. Hubert, 71 Mass. App. Ct. 661, 663 (2008). The defendant testified, for example, that he performed poorly on the sobriety tests because he had a bad back and knee. Without expert testimony explaining the significance of the defendant's BAC to the degree of his impairment or intoxication, the jury was "left to guess at its meaning." Colturi, supra at 818. Thus, "[u]nder the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and ... created a substantial risk of a miscarriage of justice." Douglas, supra.
We therefore reverse the judgment on the OUI charge, set aside the verdict, and remand the matter to the District Court for further proceedings consistent with this memorandum and order.
So ordered.
Reversed and remanded.