448 Mass. 809 | Mass. | 2007
The question presented in this case is whether, or on what conditions, the result of a breathalyzer test is admissible in a criminal trial on a charge of operating a motor vehicle while under the influence of intoxicating liquor (OUI), in violation of G. L. c. 90, § 24 (1) (a) (1), as amended through St. 2003, c. 28, § 1 (OUI statute).
As a consequence of amendments to the OUI statute enacted in 2003, an OUI violation may be established on proof that a driver was operating a motor vehicle either “with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater” (per se violation), or “while under the influence of intoxicating liquor” (impaired ability violation). G. L. c. 90, § 24 (1) (a) (1). A judge in the District Court Department ruled that “the Commonwealth may not offer evidence of a [bjreathalyzer test result obtained more than an hour after evidence of the defendant’s last operation of a vehicle to prove the ‘per se’ offense unless it offers expert [retrograde extrapolation] testimony establishing the defendant’s blood alcohol at the time of operation . . . [and] . . . may not offer [such test result] to prove the ‘impaired ability to operate’ offense unless it offers expert testimony establishing [both] the defendant’s blood alcohol level at the time of operation and'the significance of that level as it pertains to impairment.” The judge also ruled, however, that in a prosecution of an impaired ability violation, the Commonwealth may offer evidence without the need of expert testimony “that the defendant took a [b]reathalyzer test and that the test reading was greater than zero,” thus indicating the presence of alcohol in the defendant’s system, but nothing more.
The correctness of the judge’s rulings is before the court on a reservation and report of a single justice following both a petition by the Commonwealth for extraordinary relief pursuant to G. L. c. 211, § 3, and its application for leave to file an interlocutory appeal. The parties have filed a statement of agreed facts.
1. Facts. Anne Colturi was stopped at 9:10 p.m. by a State trooper who observed her operating a vehicle in an unsafe fashion. On stopping the vehicle, the trooper smelled alcohol in the vehicle and on Colturi, and he observed that Colturi’s speech was slurred and her eyes glassy. She swayed, was off balance, and used the vehicle for support as she walked to the rear of the vehicle. Colturi was arrested for operating a motor vehicle while under the influence of alcohol and consented to a breathalyzer test. Two tests were administered, the first at 10:15 p.m. and the second at 10:19 p.m. The results showed,a blood alcohol level of .15 per cent. Thereafter, a complaint issued charging her with violating the OUI statute by operating a vehicle “with a percentage, by weight, of alcohol in his or her blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor.”
2. Discussion. In 2003, the Legislature amended G. L. c. 90, § 24, in several respects. As pertains to the issues before us, the Legislature added language to the OUI statute, making it a violation to operate a motor vehicle not only under the influence of intoxicating liquor, but also with a blood alcohol level of .08 or more. Having added this language to the violation
Whether these amendments changed the law regarding the admissibility of the results of breathalyzer tests in OUI prosecutions, adding new requirements or prerequisites to it, is a matter of statutory interpretation. We interpret statutes “according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975). We also presume that when the Legislature amends a statute it is “aware of the prior state of the law as explicated by the decisions of this court,” Commonwealth v. Callahan, 440 Mass. 436, 441 (2003), and where it has reenacted statutory language without material change, they are “presumed to have adopted the judicial construction put upon it.” Nichols v. Vaughan, 217 Mass. 548, 551 (1914).
The purpose of G. L. c. 90, § 24, generally, is to “protect the public from drivers whose judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies are
Our decisions prior to the enactment of the 2003 amendments rejected attempts to exclude breathalyzer test results because of the lapse between the time of the alleged offense and the administration of the breathalyzer test, which often occurs away from the scene of the arrest, at a police station, and always occurs some period of time thereafter. Commonwealth v. Marley, 396 Mass. 433, 438 (1985) (results admissible despite more than two and one-half hours between time of accident and breathalyzer test). Even when confronted with expert evidence that “it was possible for a person’s blood alcohol level to increase [rather than decrease] over a short period of time even though no additional alcohol was ingested during that time,” we had not required expert testimony on retrograde extrapolation as a prerequisite to the admissibility of breathalyzer test results, and consistently ruled that any delay in the administration of the breathalyzer test goes to the weight of the evidence, not its admissibility. Commonwealth v. Durning, supra at 494 n.11, citing Commonwealth v. Marley, supra. Other State courts have reached the same conclusion. See, e.g., State v. Taylor, 132 N.H. 314, 319 (1989) (delay between operation of a motor
The position proposed by the defendant and accepted by the judge, that expert testimony on retrograde extrapolation must now be offered as a prerequisite to the admission of breathalyzer test results, imposes new and significant burdens on the Commonwealth. It is contended by the Commonwealth, and undisputed on the present record, that numerous OUI cases are prosecuted every day in courts throughout the Commonwealth, that there are few State employed experts on retrograde extrapolation available, and that the costs of utilizing private experts at these trials would be inordinate. More importantly, in many, if not most, cases, the Commonwealth will not be able to acquire the information necessary to construct an accurate retrograde extrapolation because such information (e.g., when and in what amounts the defendant consumed the alcohol prior to driving)
If the Legislature had intended to change our existing rule of admissibility when it amended the OUI statute in 2003, and to place additional and even “impossible” burdens on the Commonwealth, it would have done so explicitly. Cf. Commonwealth v. Bowden, 447 Mass. 593, 598 (2006) (where G. L. c. 90, § 24 [4], expressly states one way to meet burden of proof, it is permissible to meet burden of proof with other means because Legislature did not explicitly forbid other means). It did not. To the contrary, it left in place the language of § 24 (1) (e) that in any prosecution under the OUI statute, “evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by . . . a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor.” The only change of substance to the statutory scheme was the elimination of the statutory “permissible inference” in § 24 (1) (e) that a person with a blood alcohol test result of .08 or more “was under the influence of intoxicating liquor,” and its replacement with a per se violation for operating a motor vehicle with a blood alcohol level at that same level. This rearrangement has no bearing on the admissibility of breathalyzer test results.
Leaving the statutory declaration of relevance aside, a breathalyzer test result in the range of .08 or greater, acquired within a reasonable time after operation, is as relevant to a jury’s determination whether the defendant was operating a mo
Our conclusion that breathalyzer test results are admissible in OUI prosecutions, without the necessity of retrograde extrapolation, is limited to cases where the tests have been conducted within a reasonable time of the operation of a motor vehicle. See Commonwealth v. Marley, 396 Mass. 433, 438-439 (1985) (“time delay was reasonable and warranted in the circumstances” where police dispatched to accident at 4:30 a.m. and tests conducted at 7:05 a.m.); State v. Kubik, 235 Neb. 612, 634 (1990) (breath test must be administered within “reasonable time” to be probative and admissible; determination of reasonableness is fact specific); State v. Taylor, 132 N.H. 314, 320-321 (1989) (breath test taken within “reasonable period of time” admissible on per se and impairment theories without retrograde extrapolation).
The Massachusetts statute (unlike some others) is silent on the subject of time delay, and the requirement that tests must be performed in a “reasonable time” has been overlaid by our decisional law. Statutes in many other States, however, have dealt directly with the issue and set limits on what a reasonable delay may be. These statutes provide a useful guide for our reference.
Finally, if the per se and impaired ability theories of criminal liability are charged in the alternative (as they were here) and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor. Relevant to this determination would be the statutory provision creating a permissible inference that the defendant was not operating while under the influence if the test results were .05 or less, and the lack of any permissible inference if the results were greater than .05 and less than .08.
If, however, the Commonwealth were to proceed only on a theory of impaired operation and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to
The decision of the District Court judge is reversed in part, and the case remanded for further proceedings consistent with this opinion.
So ordered.
The District Court judge made other rulings regarding the admissibility of breathalyzer test results absent written certification of the breathalyzer machine, and the admissibility of records of the office of alcohol testing. These rulings have not been appealed and are not before us.
Retrograde extrapolation is a mathematical calculation used to estimate a person’s blood alcohol level at a particular point in time by working backward from the time the blood alcohol level was tested and factoring in rates of absorption and excretion. Commonwealth v. Senior, 433 Mass. 453, 459 (2001), citing R.J. Kenney, Jr., & T.J. Farris, Motor Vehicle Law and Practice § 24.14 (3d ed. 1998).
We acknowledge the amicus brief filed by the District Attorney for the Plymouth District.
General Laws c. 90, § 24 (1) (a) (1) (OUI statute), now provides, in pertinent part: “Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor . . . shall be punished . . . .”
General Laws c. 90, § 24 (1) (e), now provides, in pertinent part, that, in a prosecution under the OUI statute, “evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis ... of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor.” It also provides that evidence of a BAG percentage of .05 or less gives rise to “a permissible inference that [the] defendant was not under the influence of intoxicating liquor” and that where there is evidence of a blood alcohol level of more than .05 but less than .08 “there shall be no permissible inference.”
See also Miller v. State, 597 So. 2d 767, 770 (Fla. 1991) (State need not present “relate back” evidence for court to admit evidence of blood test, and delay between driving and testing goes to weight of results only); People v. Kappas, 120 Ill. App. 3d 123, 129 (1983) (results of test administered thirty-eight minutes after driving properly admitted without further evidence because delay reasonable and passage of time affects weight of test results); State v. Kubik, 235 Neb. 612, 634 (1990) (no need to provide foundation relating back test results to time of driving; delay affects weight, not admissibility, of breath test results). Contrast State v. Ladwig, 434 N.W.2d 594 (S.D. 1989) (retrograde extrapolation testimony necessary to convict defendant of per se violation); State v. Dumont, 146 Vt. 252 (1985) (in prosecution for driving while under influence of alcohol, results of a blood alcohol content test admissible only with “relation back” testimony establishing defendant’s blood alcohol content at time of actual operation).
“Retrograde extrapolation is based on the theory that, as alcohol is
Haw. Rev. Stat. § 291E-3(a) (Supp. 2005) (test result of .08 or more within three hours after time of violation competent evidence that person under influence at time of violation); Ind. Code Ann. §§ 9-30-6-2, 9-30-6-15 (2004) (results of test admissible if administered within three hours after officer had probable cause to believe person driving while under influence); Iowa Code Ann. § 321J.2(8)(a) (2005) (results of test administered within two