Opinion
15-P-255
03-08-2016
COMMONWEALTH v. SHANE B. MCKEE.
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
After a jury-waived trial, the defendant, Shane McKee, appeals from his conviction of operating a motor vehicle under the influence of intoxicating liquor. He raises two issues on appeal. First, he claims that his conviction was based on insufficient evidence. Second, he claims that the court improperly admitted breathalyzer test results. We affirm.
Background. Viewing the evidence in the light most favorable to the Commonwealth as we must, the trial judge could have found the following facts. On April 17, 2012, at 10:15 P.M., Officer Chad Cerce of the North Attleboro police department was dispatched to Greenwood Drive, a dirt road. Upon arrival, Officer Cerce spoke with a resident about a vehicular accident involving a white pick-up truck, which he located at the defendant's residence. The defendant confirmed that the truck was his, and that he had been driving it when it crashed into a tree. Officer Cerce asked the defendant if he had been drinking and the defendant stated he had consumed four beers, and that he was too inebriated to drive. Officer Cerce noticed that the defendant's eyes were "bloodshot and glassy," and that he "smelled of an intoxicating beverage." The defendant agreed to undergo field sobriety tests and failed to perform the tests as they were demonstrated to him. Based on these observations, Officer Cerce formed the opinion that the defendant "was under the influence of intoxicating liquor" and placed him under arrest.
See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Once he arrived at the police station, the defendant was booked and signed forms acknowledging his rights and consenting to take a breathalyzer test. Officer John Grim observed the defendant for fifteen minutes in order to make sure the defendant did not engage in any behavior which would introduce alcohol or another substance into his mouth; he observed no such behavior. At 11:55 P.M., Officer Grim attempted to complete the first test; however, because the machine detected ambient alcohol in the air (the officer had recently sprayed Lysol disinfectant in the area), it would not perform the test until it recalibrated. The defendant waited in a chair three to five feet away from the machine; once it had recalibrated, Officer Grim began the second test. For unexplained reasons, that test also proved unsuccessful, and the machine had to recalibrate once more. While it did so, Officer Grim continued to observe the defendant in the same chair. Finally, the third breathalyzer test was completed, and the instrument recorded the defendant's blood alcohol content at 0.20 percent.
501 Code Mass. Regs. § 2.13(3) (2011) requires that a person arrested for driving under the influence of alcohol be observed for fifteen minutes prior to administering the breathalyzer test. If the officer suspects that the arrestee has introduced any item into his or her mouth, the officer is required to restart the fifteen-minute observation period.
Discussion. 1. Sufficiency of the evidence. The defendant argues that insufficient evidence was presented as to two elements of the crime: operation while under the influence of alcohol, and operation upon a public way. See G. L. c. 90 § 24(1)(a)(1). This court asks whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Hilaire, 470 Mass. 338, 343 (2015), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
a. Operation while intoxicated. The Commonwealth presented sufficient evidence that the defendant was intoxicated when he operated his truck. The defendant told Officer Cerce that he consumed sixty-four ounces of beer after the accident and before the officer's arrival at his home, a window of roughly twenty-five minutes. The trial judge, as fact finder, was not required to credit this testimony, and clearly did not. The inference that the defendant was driving while intoxicated was reasonable based on the following facts, which are supported by the evidence. The defendant had very recently crashed his truck into a tree. Officer Cerce observed the defendant perform several field tests in a manner that was contrary to how Officer Cerce demonstrated them. Finally, the breathalyzer test results indicated that the defendant had a blood alcohol level of 0.20 percent roughly two hours after the accident. The law permits the fact finder to rely on breathalyzer test results as an accurate measure of the defendant's blood alcohol level at the time of operation so long as the test is conducted within three hours of the operation. See Commonwealth v. Colturi, 448 Mass. 809, 816-817 (2007). Expert witness testimony based on the principle of retrograde extrapolation is not required in such a case. Id. at 811. The Commonwealth is not required to produce direct evidence that the defendant was impaired by the consumption of alcohol when he drove the vehicle. See Commonwealth v. Morse, 468 Mass. 360, 378 (2014). In this case, as in Commonwealth v. Hilton, 398 Mass. 63, 66-67 (1986), convincing proof that the defendant operated a motor vehicle while under the influence of alcohol was based entirely on circumstantial evidence.
The defendant testified that he had consumed four "[sixteen]-ounce cans . . . called Tall Boys." Officer Cerce testified that he began field sobriety tests at 10:25 P.M.
b. Operation on a public way. A defendant operates a vehicle on a public way if he or she travels "upon any way or in any place to which members of the public have access as invitees or licensees." G. L. c. 90, § 24(1)(a)(1). The evidence at trial showed that Greenwood Drive is a dirt road, abutted by roughly ten houses; this road is used as a "cut through" to other streets, one of which is paved There are street lights on the road, and no signs prohibit the public from using it. Furthermore, town employees use a snow plow to clear snow off the road. Greenwood Drive's characteristics reasonably suggest to members of the public that it is open for travel. "[I]t is sufficient if the [characteristics] of the way are such that members of the public may reasonably conclude that it is open for travel to invitees or licensees of the abutters." Commonwealth v. Hart, 26 Mass. App. Ct. 235, 238 (1988). Greenwood Drive falls within this definition. Cf. Commonwealth v. Callahan, 405 Mass. 200, 203-204 (1989); Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 551-552 (1996).
2. Admissibility of breathalyzer test results. The defendant argues that the trial judge erred in denying his "motion to suppress" the results of the breathalyzer test., We conclude that the admission of the breathalyzer test results was not error, because the tests were administered in accordance with 501 Code Mass. Regs. § 2.13 (2011). This regulation requires simply that an arrestee be placed under observation for at least fifteen minutes prior to the administration of a breathalyzer test. There is no requirement that each test be individually preceded by its own fifteen-minute interval, provided that the total period of observation prior to the test that produced the result lasted at least fifteen minutes. The purpose of the regulation is to ensure that the defendant "ha[d] not brought any substance into [his] mouth, such as food, drink, or regurgitation by burping or by hiccoughing." Commonwealth v. Zeininger, 459 Mass. 775, 792 (2011), quoting from Commonwealth v. Pierre, 72 Mass. App. Ct. 230, 231-232 (2008). At no point was the defendant observed to be engaging in any such behavior. Officer Grim's presence and observation of the defendant, from the time of his arrival at the police station until the successful third test, exceeded the required fifteen minutes and served its intended purpose. There was no deviation from the requirements of the regulation, and the test result was admissible.
The ruling was on a motion in limine, not a motion to suppress.
Defense counsel's argument is grounded in the officer's alleged failure to comply with the requirements of 501 Code Mass. Regs. § 2.13 (2012).
Conclusion. We find no error in the judgment below, and affirm the defendant's conviction.
Judgment affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 8, 2016.