Commonwealth v. Canty, 466 Mass. 535

In March 2009 Officer Bulman observed erratic driving, followed the vehicle, and after a delayed stop smelled alcohol, saw bloodshot eyes, and noted the driver (defendant) stumbled and performed poorly on field sobriety tests; a half-empty bottle of brandy was later found in the vehicle.
Defendant was tried by jury on OUI (G. L. c. 90, § 24(1)(a)(1)) and negligent operation charges, convicted, and later pleaded guilty to multiple related indictments including one alleged to charge operating after suspension while OUI (G. L. c. 90, § 23).
Pretrial the defendant sought to exclude officer opinions that he was intoxicated or impaired; the judge allowed lay opinion testimony as to sobriety but reserved jury instruction that the jury decide the ultimate issue.
At trial one officer testified his opinion that the defendant’s “ability to drive was diminished,” and another testified the defendant was “probably impaired.” Defendant preserved the evidentiary objection for appeal.
Defendant moved to vacate his guilty plea to the first indictment, arguing that the indictment failed to allege the essential element that the license suspension resulted from a prior OUI, so it did not charge a crime; the judge denied the motion and the defendant appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of officer opinion testimony on sobriety/impairment	Commonwealth: lay officers may testify to observed sobriety and opinions about intoxication	Canty: officer opinions that ability to drive was diminished or he was "probably impaired" improperly opine on guilt/ultimate issue	Officers may give lay opinions about sobriety/intoxication but may not opine that alcohol diminished ability to operate a vehicle (i.e., impairment of driving ability); one officer’s testimony that ability to drive was diminished was erroneously admitted, but another saying "probably impaired" was admissible as sobriety opinion and error was harmless
Validity of guilty plea to an indictment omitting an element (license suspension reason)	Commonwealth: indictment captioned statute and other counts gave fair notice; omission does not require dismissal if defendant had notice and understood plea	Canty: indictment failed to allege that suspension was for a prior OUI, so it did not charge the § 23 offense and plea must be vacated	Indictment sufficiently charged the § 23 (fourth paragraph) offense for fair notice; defendant failed to show he did not understand the charge when pleading guilty; plea not vacated

Edwards v. Worcester, 172 Mass. 104 (1898) (historical recognition that lay witnesses may testify to intoxication)
Holton v. Boston Elevated Ry. Co., 303 Mass. 242 (1939) (principal objective symptoms of intoxication are well known; lay opinions admissible)
Commonwealth v. Jones, 464 Mass. 16 (2012) (police may testify to apparent intoxication but not opine on ultimate question of operating while under the influence)
Commonwealth v. Hamilton, 459 Mass. 422 (2011) (no witness may testify as to a defendant’s guilt or innocence)
Commonwealth v. Fernandes, 430 Mass. 517 (1999) (indictment need not plead every element if it gives fair notice of the charge)