Argued May 8, 2015.
Complaint received and sworn to in the Taunton Division of the District Court Department on July 23, 2012.
The case was heard by Thomas L. Finigan, J.
Justin D. Cohen for the defendant.
Corey T. Mastin, Assistant District Attorney, for the Commonwealth.
Present: Green, Milkey, & Maldonado, JJ.
[42 N.E.3d 1163] Maldonado, J.
After a bench trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol, G. L. c. 90, § 24(1)( a )(1). On appeal, he asserts that (1) the breathalyzer test results were inadmissible because the Commonwealth did not follow certain regulations, (2) the judge erred by reopening the case to take additional evidence on the breathalyzer test after both parties had rested, and (3) the evidence was insufficient to support the conviction. We affirm.
Inadmissibility of the breathalyzer.
Regulations promulgated by the Executive Office of
Public Safety govern how alcohol breath tests are to be administered and how
breathalyzers should be maintained. See G. L. c. 90, § 24K. " For a breathalyzer
result to be valid and admissible in evidence, the Commonwealth must demonstrate [42 N.E.3d 1164] compliance with those regulations that 'go to the accuracy of the [breath testing] device or manner in which the [breathalyzer] test was performed.'" Commonwealth v. Hourican, 85 Mass.App.Ct. 408, 411, 10 N.E.3d 646 (2014), quoting from Commonwealth v. Kelley, 39 Mass.App.Ct. 448, 453, 657 N.E.2d 1274 (1995).
The regulations require " periodic testing" to check the breathalyzer's function. " [P]rior to the admission of a breathalyzer result, the Commonwealth must prove ... compliance with[ ] the requirements of a periodic testing program." Commonwealth v. Barbeau, 411 Mass. 782, 786, 585 N.E.2d 1392 (1992). The periodic tests must be done at a minimum " whenever the calibration standard [here, cylinders of gas, see 501 Code Mass. Regs. § 2.11(3) (2010)] is replaced and after the breath test device is certified by OAT [the office of alcohol testing]." , 501 Code Mass. Regs. § 2.12(2) (2010). Each periodic test consists of " five calibration standard analysis tests." 501 Code Mass. Regs. § 2.12(1) (2010). A calibration standard analysis test is a reading by the breathalyzer of the alcohol concentration of the gas in the cylinder to test the accuracy of the breath test machine. See 501 Code Mass. Regs. § § 2.02, 2.11(3), 2.12 (2010). " The test shall be considered valid and the device operating properly" if the reading of the gas in the cylinder " shows an alcohol concentration of 0.074%-0.086%." 501 Code Mass. Regs. § 2.11(3). A written report must be made of each periodic test and " shall serve as the record that the device is in calibration and working properly, and shall be admissible in a court of law." 501 Code Mass. Regs. § 2.12(1).
The regulations also require a specific procedure for the breath testing of suspects. These procedural requirements include testing the suspect's breath, conducting a " calibration standard analysis," and then testing the suspect's breath ...