Opinion
No. 15–P–877.
10-26-2016
COMMONWEALTH v. Jose TORRES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial in the Fall River District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), G.L. c. 90, § 24(1)(a ) (1). At trial, the defendant moved for the Commonwealth to select one of two applicable theories of OUI, for a required finding of not guilty, and to exclude a breath test report form. On appeal, the defendant claims error in the denial of his motions. We discern no cause to disturb the judgment, and affirm, addressing the defendant's claims in turn.
1. Theories of liability. The defendant claims that operating a motor vehicle on a public way with a percentage, by weight, of alcohol in one's body of eight one-hundredths (.08) or greater (per se OUI) is a distinct and separate offense from operating a motor vehicle while under the influence of intoxicating liquor (impaired ability OUI). The trial judge did not err in denying the defendant's motion seeking to have the Commonwealth elect one theory of criminal liability with which to charge him. Per se OUI and impaired ability OUI are not separate offenses but rather alternate theories of criminal liability, and can both be charged in the alternative. See Commonwealth v. Colturi, 448 Mass. 809, 817 (2007).
The judge found the defendant guilty of per se OUI, and not guilty of impaired ability OUI.
2. Breathalyzer equipment. The defendant claims that the Commonwealth did not lay the necessary foundation to introduce the breath test result form. The trial judge did not err in denying the defendant's motion in limine to exclude the evidence and in overruling the defendant's objections as to the inclusion of the document. Through introduction of the periodic testing report and Trooper Connell's testimony, the Commonwealth provided sufficient testimony and documentation to establish that the breathalyzer equipment was properly calibrated and tested when the defendant used it, so the form was properly admitted in evidence. See Commonwealth v. Zeininger, 459 Mass. 775, 778 (2011).
The Commonwealth was not required to introduce the regulations in evidence nor demonstrate a history of proper calibration and periodic testing; it was only required to show that the breathalyzer equipment was in compliance with a “periodic testing program” at the time the test was administered. Commonwealth v. Barbeau, 411 Mass. 782, 786 (1992).
3. Blood alcohol content. The defendant claims that the breath test result form should have been excluded because the statute requires evidence of blood alcohol content, defined as the percentage, by weight/grams of alcohol per 100 milliliters of blood, not breath alcohol content. The trial judge did not err in denying the defendant's motion and overruling his objections to the introduction of the form. The Supreme Judicial Court has concluded that “unless the contrary is indicated, all blood-alcohol percentage figures express weight/volume relationships.” Commonwealth v. Brooks, 366 Mass. 423, 432 (1974), quoting from Watts, Some Observations on Police–Administered Tests for Intoxication, 45 N.C. L.Rev. 34, 50 n.53 (1966). The trial judge correctly concluded that breath alcohol content is also known as blood alcohol concentration, blood alcohol level, and B–A–C. The breathalyzer equipment tested for blood alcohol content and used a metric, blood alcohol percentage, consistent with the statute. G.L. c. 90, § 24(1)(a ) (1). The result of the test was sufficient to meet the level of intoxication according to the statute, and so the form was properly admitted.
The defendant's blood alcohol content, as reported by the breathalyzer equipment, was .13 percent. The level of intoxication, according to the statute, is .08 percent or greater. G.L. c. 90, § 24(1)(a ) (1).
4. Required finding. The trial judge did not err in overruling the defendant's motion for a required finding of not guilty. There was sufficient evidence for a rational trier of fact to conclude that the defendant was guilty of OUI beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) ; Commonwealth v. Dacosta, 85 Mass.App.Ct. 386, 389 (2014). At trial, the defendant stipulated that he was operating a motor vehicle on a public way. The remaining issue was whether he was under the influence of intoxicating liquor under a per se OUI theory or an impaired ability OUI theory. The documentary and testamentary evidence regarding the breathalyzer equipment and the defendant's .13 percent blood alcohol content was sufficient to prove beyond a reasonable doubt that the percentage, by weight, of alcohol in the defendant's blood was greater than .08 percent, as required by G.L. c. 90, § 24(1)(a ) (1). Although an earlier model of the breathalyzer equipment used different terminology, the information shown on the form from the defendant's test was unambiguous. The breathalyzer equipment was properly calibrated and tested, and the form properly admitted into evidence.