Opinion
21-P-1034
12-07-2022
COMMONWEALTH v. Elio SILVA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI) and negligent operation of a motor vehicle. On appeal of his OUI conviction, the defendant primarily argues that the judge erred in admitting evidence of a breath test result that was recorded by the breathalyzer machine as a refusal. He argues that the Commonwealth did not lay the evidentiary foundation required to admit such evidence under Commonwealth v. Daigle, 99 Mass. App. Ct. 107 (2021). We affirm.
Background. In October of 2017, the defendant was involved in a two-car crash in which he rear-ended another vehicle. A State police trooper reporting to the scene spoke to the defendant, who the trooper testified was "swaying from side to side" and "off balance"; had "very glassy," "kind of glazed," and "extremely bloodshot" eyes; and smelled "strong[ly] and overwhelming[ly]" of alcohol. The defendant initially told the trooper that he had consumed two beers, but later said that he had also taken a shot of liquor. The defendant agreed to perform field sobriety tests. During those tests, the defendant did not follow the trooper's instructions, was off balance, and almost fell. The trooper also stopped one of the field sobriety tests out of concern for the defendant's safety. The trooper arrested the defendant and brought him to the police barracks.
The panelists are listed in order of seniority.
The trooper read the defendant his Miranda warnings once situated at the barracks, and thereafter the defendant signed a form -- entitled "statutory rights and consent form" -- consenting to a breath test. The defendant then attempted to perform the breath test, after receiving instructions from the trooper. The defendant, however, was unable to provide the two samples needed to generate a valid result. The defendant registered one sample in his first three attempts, but did not register a second sample during his next three. The trooper testified that the machine accordingly recorded the result as a "refusal." The defendant was subsequently charged with, among other things, OUI and negligent operation of a motor vehicle.
An unredacted copy of the signed form was admitted in evidence.
Prior to trial, the Commonwealth moved in limine to present evidence regarding the defendant's efforts to perform the breath test, including evidence that it was deemed a refusal. Defense counsel objected, arguing (1) that allowing the evidence would sidestep the "accuracy" problems with the model of breathalyzer used, and (2) that the evidence was more prejudicial than it was probative. Defense counsel also objected because the Commonwealth had not yet laid a foundation that "the machine itself was working."
At the time of trial, the Commonwealth was not introducing breathalyzer test results with a blood alcohol content reading, because of pending litigation concerning the breathalyzer model.
The judge then conducted a voir dire. The trooper testified that he was trained as a breathalyzer operator, that he had never had issues with the machine he used with the defendant, and that the machine gave no indication that it was malfunctioning during the defendant's breath test. The Commonwealth also provided a certificate that the breathalyzer generated regarding the defendant's test, which indicated that the machine and the trooper were properly certified at the time. Defense counsel reiterated that the evidence should be excluded because it was a "sideways maneuver" to admit breath test results and because it was more prejudicial than it was probative. Counsel did not, however, reassert his prior objection that the Commonwealth had failed to show that the machine was functioning properly.
The judge allowed the evidence, subject to a limiting instruction that he provided to defense counsel in advance of reading it to the jury. Defense counsel had "no objection regarding the [instruction's] language." The trooper then testified to the difficulties the defendant had in taking the test, and also testified that the defendant "wasn't able to complete the [second sample], so it was deemed a failure."
The judge instructed:
"[T]he Commonwealth is about to introduce evidence regarding the defendant's inability or unwillingness to complete a breath test. This evidence is offered for a very limited purpose. The purpose that is being offered is to demonstrate the defendant's inability to follow instructions which may be relevant to your decision regarding his sobriety, and it may be relevant to what the defendant's state of mind was regarding completing the test. It will be for you to decide whether the test was administered, what the defendant did during the test, and whether it is relevant to those two limited purposes. I'm instructing you that you are not to speculate what the result might have been had the test been completed."
At defense counsel's request, the judge read the instruction a second time during the final jury charge.
The jury returned guilty verdicts of OUI and negligent operation of a motor vehicle. The defendant appeals only from the OUI conviction.
Discussion. The defendant principally argues that the judge erred in allowing the trooper to testify about the defendant's failed breathalyzer attempt -- so called "post-consent refusal" evidence -- because the Commonwealth did not provide the foundation required under Daigle. The defendant does not contest that where, as here, "a defendant has consented to a breath test, evidence that [ ]he has failed to provide a sufficient sample may be introduced ... to show that [ ]he is incapable of or has attempted to avoid giving a sample." Daigle, 99 Mass. App. Ct. at 110. The defendant relies, however, on the holding in Daigle, supra at 107-108, that in presenting such evidence, "the Commonwealth must comply with the applicable statutes and regulations governing the admissibility of breath test results" in G. L. c. 90, § 24K, and 501 Code Mass. Regs. §§ 2.00 (2016). This includes showing that "the person administering the test was certified, and that the methodology used was in fact reliable" -- that is, "that the breathalyzer machine was operating properly." Daigle, supra at 111.
We begin by noting that this case is factually different from Daigle. In Daigle, 99 Mass. App. Ct. at 110-111, we held that the post-consent refusal evidence was improperly admitted, where the Commonwealth had provided no foundation that the breathalyzer was operating or operated properly -- that is, there was no evidence that the machine "could accurately detect the breath of a test subject" or that the machine and its operator were properly certified. In contrast, here the trooper testified at voir dire that the machine was functioning properly when he administered the test and had not malfunctioned either before or after the night in question. The trooper also testified that he was trained to use the breathalyzer machine. Moreover, the printed breathalyzer certificate confirmed that the trooper and the machine were certified at the time of the test. The evidentiary foundation here was therefore more robust than that in Daigle.
We also note that Daigle was decided in January of 2021, well after the defendant's trial in September of 2018.
The defendant nonetheless pressed at oral argument that the Commonwealth did not satisfy Daigle because the Commonwealth failed to meet the standard for admission of breathalyzer results set forth in the regulations -- and in particular, because there was no evidence that the machine had undergone "periodic testing." See Daigle, 99 Mass. App. Ct. at 111, citing 501 Code Mass. Regs. § 2.12 (2016). At the outset, we note that this issue was not properly raised in the trial court, nor was it raised in the defendant's brief on appeal. Accordingly, even assuming the issue is properly before us, and even if there were error in admitting the evidence, we would review "only to determine whether a substantial risk of a miscarriage of justice resulted." Commonwealth v. Rivera, 425 Mass. 633, 636 (1997).
Although defense counsel raised a general foundational objection about the machine's functionality prior to the voir dire, he did not reassert such an objection after the trooper testified. Such a renewed objection -- specific to periodic testing -- could have allowed the Commonwealth to obviate the foundational concern that the defendant now presses. Cf. Commonwealth v. Costa, 88 Mass. App. Ct. 750, 754 (2015) (delayed challenge to admissibility of periodic test report improperly "prevented the Commonwealth from mounting a factually-based response").
We need not decide whether the Commonwealth's foundation was sufficient here, because even assuming error, the strength of the Commonwealth's case convinces us that no substantial risk of a miscarriage of justice resulted. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). The trooper encountered the defendant at the scene of a crash after the defendant rear-ended another vehicle. The defendant admitted that he had consumed three alcoholic drinks and displayed tell-tale signs of impairment: his eyes were glassy and bloodshot, he smelled strongly of alcohol, and he was swaying and off balance -- to the point where the trooper ended a field sobriety test out of concern for the defendant's safety. This is all compelling evidence of the defendant's intoxication. Cf. Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017). Given the strength of this evidence, we are persuaded that the post-consent refusal evidence did not "materially influence" the verdict and thus that its admission did not create a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13. See also Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 105 (2011) (no substantial risk of miscarriage of justice given "overwhelming evidence" of intoxication).
The defendant also challenges the judge's limiting instruction regarding the post-consent refusal evidence. However, the judge provided the instruction before he gave it, and there was no objection. We therefore review only for a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13. While we have concerns about the phrasing of the first few sentences of the instruction, under the circumstances, and for the reasons stated above, we do not discern a substantial risk of a miscarriage of justice given the strength of the Commonwealth's evidence.
The defendant also claims that the judge erroneously admitted the defendant's unredacted statutory rights and consent form because portions of that form were not relevant. The defendant did not make this objection in the trial court either. Once again, we see no substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13.
Judgments affirmed.