940 N.E.2d 1251
Mass. App. Ct.2011Background
- Defendant Rumery stopped on Route 2 after erratic driving and odor of alcohol; officer observed glassy eyes and empty beer cans; defendant administered field sobriety tests and arrested; at station, breathalyzer yielded 0.08 and 0.09 BAC readings; implied consent form admitted with both results over objection; trial verdict found guilt under both OUI theories (impaired and per se BAC ≥ .08); defense challenged admission of two BAC readings and sought a margin-of-error instruction; court held the appeal while affirming judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of both BAC readings | Steele allows using both adequate samples when supporting rising BAC theory | Regulations require lower reading when two samples differ within +/-0.02; foregoes admissibility of both | Error to admit both readings; harmless error in light of evidence and instructions. |
| Margin-of-error instruction | Not explicitly stated as separate argument; focus on machine reliability regulations | Breathalyzer margin of error of 0.01% should be instructed | No mandatory margin-of-error instruction; would mislead jury; instruction declined. |
Key Cases Cited
- Commonwealth v. Steele, 455 Mass. 209 (Mass. 2009) (addressed use of lower BAC when two samples differ within 0.02)
- Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (evidence sufficiency standard for conviction)
- Commonwealth v. Colturi, 448 Mass. 809 (Mass. 2007) (breath test relevance to impaired vs. per se)
- Commonwealth v. Hubert, 453 Mass. 1009 (Mass. 2009) (harmless error standard for admittedly improperly admitted evidence)
- Commonwealth v. Flebotte, 417 Mass. 348 (Mass. 1994) (standard for harmless error and evidentiary impact)