Opinion
No. 11–P–1923.
2013-03-15
COMMONWEALTH v. Micah WAXMAN.
By the Court (FECTEAU, HANLON & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from her conviction of operating a motor vehicle while under the influence of intoxicating liquor in violation of G.L.c. 90, § 24(1)( a )(1). The defendant argues that (1) admission of an “implied consent breath test report” (breath test report or report) containing the results of multiple breathalyzer tests was prejudicial error, (2) her counsel was ineffective in failing to offer expert testimony of the margin of error, and (3) the officer's opinion regarding her sobriety was improperly admitted. We affirm.
Breath test results. The breath test report reflecting the defendant's infrared test result of 0.08 was admitted in evidence. The defendant objected to the admission of a second infrared test result in the report, and the judge instructed that this result be redacted from the report before it went to the jury.
The report also contained two fuel cell test results of 0.090 and 0.092, which are the subject of this appeal. The defendant did not object to their admission. We therefore review for a substantial risk of a miscarriage of justice. See Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013). By statute, only the infrared test results are admissible. G.L.c. 90, § 24K. By regulation, the lower of two adequate infrared breath sample results may be admitted in the ordinary course.
The defendant argues that the second infrared test result was not redacted, but the copy of the report in the record appendix shows that it was.
“To otherwise permit introduction of a marginally higher breath sample result only invites jurors to do what the regulatory framework prohibits, namely, to infer, or conclude, that the lower breath sample result is not accurate and that the defendant's blood alcohol level has been underreported.” Commonwealth v. Steele, 455 Mass. 209, 214 (2009) (noting general rule and exceptions). The two fuel cell test results (“Subj. EC: 0.092” and “Subj. EC 2: 0.090”) were not redacted. Because the fuel cell results were not relevant to the jury's consideration at trial, and were higher than the infrared test result, the defendant maintains that their admission prejudiced her before the jury in the manner prohibited by Steele.
An infrared breathalyzer test is admissible if two adequate breath samples “agree within +/- 0.02 blood alcohol content units.” 501 Code Mass. Regs. § 2.56(6)(a) (2006). If the two adequate breath samples “differ within +/- 0.02 blood alcohol content units, the lower of the two adequate breath samples shall be taken as the individual under arrest's blood alcohol level.” 501 Code Mass. Regs. § 2.57 (2006).
The fuel cell test results appear in the breath test report with a number of other figures. There was no testimony or evidence that explained any of the other numbers in the report or drew attention to them. Neither party referenced the fuel cell results in opening or closing arguments. The report concludes, in larger font: “The breath test result for this defendant is 0.08.” Thus, the fuel cell test results were two of many other numbers that were meaningless in the absence of explanation. Accordingly, the risk that the jury would view these numbers in a prejudicial or improper manner was substantially, if not wholly, dissipated, and the failure to redact these results did not rise to the level of a substantial risk of miscarriage of justice. “[T]he properly admitted reading of 0.08, by itself, permitted the jury to conclude that the defendant had a blood alcohol level that was above the legal limit.” Commonwealth v. Rumery, 78 Mass.App.Ct. 685, 688 (2011).
Ineffective assistance. The defendant argues that her trial counsel was ineffective because he failed to retain an expert to develop the theory that a breathalyzer machine has an inherent margin of error. “Counsel is ineffective where his conduct falls ‘below that which might be expected from an ordinary fallible lawyer’ and prejudices the defendant by depriving him ‘of an otherwise available, substantial ground of defence.’ We look to the reasonableness of the decision at the time it was made. Commonwealth v. Burgos, 462 Mass. 53, 70, cert. denied, [133] S .Ct. [796] (2012).” Lavoie, 464 Mass. at 89–90, quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The preferred method for raising an ineffective assistance claim is in a motion for a new trial. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). A narrow exception exists where the factual basis of a defendant's claim appears indisputably on the trial record. Id. at 811.
The defendant's claims are not so fully developed in the trial record as to fall within this exception. There are strategic reasons why defense counsel would forgo an expert, since “[b]y the time a particular result has been admitted in a trial, any ‘margin of error’ has already been accounted for by the multipart [testing] procedure.” See Rumery, supra at 690 (no obligation to instruct on margin of error). The officers denied that there was a margin of error in the test result, but did acknowledge other factors which could impact the result.
On this record, we cannot say that counsel's decision to cross-examine two police officers on the question of margin of error, rather than obtain an expert witness, was not a tactical decision, or one that was “manifestly unreasonable when made” (citation omitted). Commonwealth v. Hudson, 446 Mass. 709, 716 (2006) (distinguishing defense that is unreasonable from one that is merely unsuccessful). See Commonwealth v. Peloquin, 437 Mass. 204, 210 n. 5 (2002).
One officer did testify that there is a margin of error with respect to the solution in the simulator. He further stated that “nothing's perfect, yes” when asked whether the breath test machine is not perfect. In addition, counsel elicited testimony about factors, such as the passage of time, that would affect a breathalyzer test result.
Opinion testimony. The defendant's final contention is that the arresting officer erroneously testified that, in her opinion, the defendant was operating a motor vehicle under the influence of an intoxicating beverage. We review for a substantial risk of a miscarriage of justice, as there was no objection. See Lavoie, supra at 89. The defendant was charged with a per se violation, that is driving with a blood alcohol level of 0.08. G.L. c. 90, § 24(1)( a )(1). The defendant challenged both intoxication and the test result. The officer testified that there was a strong odor of alcohol coming from the defendant's vehicle, that the defendant stated she had a drink, that the defendant's eyes were bloodshot and glassy, and that her speech was slurred and thick tongued. The officer further testified that the defendant had difficulty following some instructions and performing some parts of the sobriety tests. Finally, the officer testified that she “formed the opinion that Ms. Waxman had been operating a motor vehicle under the influence of intoxicating beverage.” Because the defendant's sobriety was contested, the admission of the officer's lay opinion was properly admitted for the jury to consider whether the defendant was intoxicated and to corroborate the accuracy of the test result, whose validity the defendant has sought to undermine. See Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 321 (1994) (lay opinion of officer as to intoxication was admissible), citing Commonwealth v. Atencio, 12 Mass.App.Ct. 747, 750–751 (1981).
Judgment affirmed.