42 N.E.3d 1162
Mass. App. Ct.2015Background
- Defendant Thomas J. Costa was tried in a bench trial and convicted under G. L. c. 90, § 24(1)(a)(1) for operating a motor vehicle while under the influence based on Alcotest 9510 breath test results that exceeded the legal limit.
- The Alcotest 9510 uses two gas cylinders (inlets) containing calibration gas; the device self-selects a cylinder based on pressure.
- A periodic calibration test (required by 501 C.M.R. rules) had been run using one cylinder; the defendant’s breath test used the other cylinder; both cylinders had not been changed between tests.
- The Commonwealth produced a written periodic test report and a witness who attested to its contents; defense counsel initially assented to admission “in form, but not substance,” without specifying grounds.
- After both sides rested, defense counsel for the first time specifically challenged admissibility, arguing (without expert testimony) that use of different canisters undermined calibration and thus the breath result.
- The judge, after noting the report was already admitted, allowed the Commonwealth to recall its witness to explain calibration; the defendant objected to reopening; court concluded reopening was within its discretion and affirmed conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of breathalyzer results | Commonwealth: regulations were followed and periodic test report shows device accuracy | Costa: different cylinders were used for periodic test and his test, so no proof device was properly calibrated for his sample | Admitted: defendant pointed to no regulation requiring testing each cylinder’s solution; periodic test and report tested device functioning and were sufficient |
| Requirement of periodic testing to admit results | Commonwealth: must show compliance with periodic testing program via written report and tests | Costa: periodic testing here was inadequate because calibration used a different cylinder than the field test | Rejected: regulations test device functioning, not each cylinder; Commonwealth’s periodic test report was admissible |
| Reopening evidence after both rested | Commonwealth: judge may reopen for good reason and fairness, especially when objection surfaced late and report already admitted | Costa: judge abused discretion by allowing Commonwealth to recall witness after resting | Affirmed: reopening was reasonable given defense’s late, tactical, nonspecific objection; Commonwealth entitled to respond; defendant suffered no prejudice |
| Sufficiency of evidence for conviction | Commonwealth: properly admitted breath test above legal limit supports conviction | Costa: breath test unreliable so evidence insufficient | Affirmed: properly admitted results were sufficient to support conviction |
Key Cases Cited
- Commonwealth v. Hourican, 85 Mass. App. Ct. 408 (2014) (regulations governing breath tests control admissibility)
- Commonwealth v. Kelley, 39 Mass. App. Ct. 448 (1995) (Commonwealth must show compliance with accuracy-related regulations)
- Commonwealth v. Barbeau, 411 Mass. 782 (1992) (periodic testing program proof required before admitting breathalyzer results)
- Commonwealth v. Cochran, 25 Mass. App. Ct. 260 (1988) (calibration analysis tests device functioning rather than concentration in each cylinder)
- Commonwealth v. Pavao, 39 Mass. App. Ct. 490 (1995) (criticizing tactical silence by counsel and limits of acceptable advocacy)
- Commonwealth v. Cancel, 394 Mass. 567 (1985) (party must timely state objections so judge can correct errors)