39 Mass. App. Ct. 448 | Mass. App. Ct. | 1995
While on his way home on September 28, 1988, from a charity banquet, the defendant Kelley drove errantly enough to attract the notice of a Wenham police officer, Brian H. Casparian, who pulled Kelley over. Officer Casparian administered three standard field sobriety tests — the
At the Wenham police station, Kelley submitted to breathalyzer tests and registered blood alcohol levels of .17 and .16,
A jury of six returned a verdict of guilty. On appeal, Kelley presses the grounds urged at trial for exclusion of the breathalyzer test results. We affirm the judgment of conviction.
Over the past three years, a series of court decisions has established some common ground underlying the technical
The defendant’s major point at trial and on appeal is that the “known value”
Although the defendant purports to render mysterious the known value of the simulator solution, it follows from OAT’s instructions and from the regulations in effect at the time that the standard assay of simulator solution distributed by
As to other elements of Kelley’s breath test, the Commonwealth was diligent in offering evidence that the operator of the device had been trained arid recertified as qualified on June 10, 1988, and that the device itself had been recertified by OAT within allowable time limits. Concerning the test itself, the Commonwealth offered testimony of Officer Karen Black about the manner in which she went about administering the test (it conformed with regulations) and about the test results themselves, including printouts of the testing of Kelley’s two exhalations and the simulator solution. From the standpoint of adequacy of proof that the prescribed testing procedures had been followed, the evidence of Kelley’s test results was rightly received.
Kelley raises two other grounds for excluding his breathalyzer test results. First, that Officer Black did not, as required by 501 Code Mass. Regs. § 2.55 (1987), keep him under observation for the requisite fifteen minutes, at a minimum, before having him blow into the machine
2. Discovery compliance. As an alternate to its unreliability theory, the defense urges exclusion of the breath test results as a sanction for failure by the Commonwealth to comply with a discovery order. See Mass.R.Crim.P. 14(a) and (c), 378 Mass. 874 and 880 (1979).
Ample evidence exists in the record to support the trial judge’s conclusion that the Commonwealth complied with discovery requirements. Transcript of pretrial proceedings discloses extensive discussion of waiver by defense counsel of certain discovery requests and attempts by the Commonwealth to provide the defense with requested materials. The principal complaint of the defense is that the Commonwealth belatedly produced a certificate from the director of OAT certifying that simulator solution lot number 0472 (the one used in the defendant’s test) was assayed to read 0.15%. For the reason that it did turn up late, the certificate, although marked for purposes of identification, was never placed in evidence. One might add that the certificate was the opposite of exculpatory, and if the defendant was denied anything, it was not of value to his defense. There was no occasion for
Judgment affirmed.
The blood level numbers reflect the percentage, by weight, of alcohol in the blood of the person being tested.
Since 1994, the blood alcohol level at which an inference of impairment is permissible has been .08.
The substance of the three-step testing appeared as well in the 1987 regulation in effect at the time Kelley was tested. See also Commonwealth v. Cochran, 25 Mass. App. Ct. 260, 261-262 (1988).
Under 501 Code Mass. Regs. § 2.56(2) (1987), the calibration standard analysis (step two of the breath test) must “agree with the known value of the simulator solution to within +/-0.01 blood alcohol content units.”
The purpose of the waiting period under surveillance is to make sure any contaminants (e.g., tobacco smoke) in the test subject’s mouth that might affect results have cleared and to be sure that the test subject is not burping or hiccoughing. 501 Code Mass. Regs. § 2.55 (1987).