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Commonwealth v. AdonSoto

Supreme Judicial Court of Massachusetts, Norfolk

September 16, 2016


          Heard: February 11, 2016.

         Complaint received and sworn to in the Stoughton Division of the District Court Department on July 23, 2012. The case was tried before James H. McGuiness, Jr., J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Christopher DeMayo for the defendant.

          Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

          Eric R. Atstupenas, for Massachusetts Chiefs of Police Association, Inc., amicus curiae, submitted a brief.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. [1]

          HINES, J.

         The defendant, Glenis A. AdonSoto, was convicted by a jury of operating a motor vehicle while under the influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a.) (1) . The defendant, whose native language is Spanish, was stopped in the early morning hours of July 22, 2012, by a Stoughton police officer in response to a telephone call from a concerned driver. After the defendant was arrested and transported to the police station, the police secured the services of a telephonic language interpreter service to read the defendant her rights and instruct her on how to perform the breathalyzer test. The defendant did not properly perform the test during three attempts, producing no usable result. At the trial, the judge admitted in evidence the defendant's failure to perform the breathalyzer test.

         The defendant appealed, asserting as error (1) the admission of her failure to produce a usable breathalyzer result, claiming that it should have been excluded as "refusal" evidence under G. L. c. 90, § 24 (1) (e); (2) the admission of the interpreter's English language version of her statements as hearsay and a violation of her constitutional right of confrontation; (3) insufficiency of the evidence of impairment; and (4) prejudicial errors in the instructions to the jury. We granted the defendant's application for direct appellate review. We affirm the conviction based on our conclusions that the failure to properly perform a breathalyzer test after giving consent is not inadmissible as refusal evidence; that the police-appointed interpreter acted as the defendant's agent in the circumstances of this case, and thus, the statements were not hearsay; that the defendant's unpreserved confrontation claim is unavailing, as there is no showing of a substantial risk of a miscarriage of justice; that the evidence was sufficient to establish her impairment; and that the jury instructions did not create prejudicial error.[2]


         We recite the facts the jury could have found, reserving certain details for our discussion of the specific issues raised. At approximately 2:30 A.M. on July 22, 2012, a Stoughton resident who had just left his home to drive to work noticed the defendant driving down the middle of a two-lane road, straddling the solid double-yellow line. A tractor-trailer truck driving in the opposite direction blew his horn as a warning signal to the defendant. The resident was driving in the same direction as the defendant, and he followed behind her for ten to twelve minutes. There was "extremely light traffic" at the time. The defendant swerved back and forth in her lane, and she crossed the fog line approximately twenty times.

         While following the defendant, the resident called the Stoughton police. In response, a Stoughton police officer stopped his police cruiser in the roadway along the route that the defendant's vehicle was traveling. The officer observed the defendant drive through a four-way stop intersection without stopping. He activated his lights and followed her, and she stopped.

         The defendant was alone in the vehicle. The officer smelled the odor of alcohol through the vehicle's open window and noticed that the defendant's eyes were glassy. The defendant responded to the officer's questions in Spanish and, although he knew only a "little" Spanish, he knew enough to notice that her speech was slurred. He ordered the defendant out of the vehicle. She was unsteady on her feet, but the officer could not perform a field sobriety test because he could not effectively communicate with her in a language that they both understood. He arrested the defendant and took her to the police station.

         When they arrived, the officer telephoned a telephonic language interpreter service to speak to a "registered, certified interpreter." The telephone was placed on speakerphone loud enough for the officer and defendant to hear the conversation. The telephone call was not recorded. The officer read the defendant the Miranda rights in English, and the interpreter relayed them to the defendant in Spanish. The defendant nodded her head up and down while the interpreter was speaking and when asked if she understood, she responded, "Yes, " in Spanish. The defendant explained to the interpreter that she had been at a friend's house and because the friend was intoxicated, she borrowed her friend's vehicle to drive herself home. The officer, through the interpreter, asked if the defendant would take a breathalyzer test, and the defendant agreed. The officer explained the instructions, and the interpreter relayed them in Spanish. The interpreter asked the defendant in Spanish if she understood the instructions, and she verbally responded, "Yes."

         The officer explained that "[y]ou have to seal your lip[s] tightly around the . . . mouthpiece and blow until the machine tells you to stop" in order for the breathalyzer to read a result. The defendant did not properly seal her lips during the first test, and the officer then physically demonstrated the instructions.[3] After the demonstration, the officer asked through the interpreter if the defendant understood him, and "she nodded 'Yes' up and down." The defendant did not seal her lips around the mouthpiece when the officer administered the test a second and third time. After the second test, the officer explained the instructions again and stated that the breathalyzer machine allowed three attempts so there was only one more chance to perform the test correctly. There were no results from any of the three attempts.


         1. Evidence of failed breathalyzer test.

         The defendant claims that the judge erroneously admitted evidence of her failure to properly complete the breathalyzer test, arguing that evidence of a defendant's "failure" or "refusal" to take a breathalyzer test is inadmissible in a civil or criminal proceeding as it is excluded under G. L. c. 90, § 24 (1) (e) . The defendant also argues that the evidence should have been excluded under Mass. G. Evid. § 403 (2016), because any probative value was substantially outweighed by the danger of unfair prejudice. The defendant's arguments are unavailing.

         Exclusion of refusal evidence is based on a defendant's privilege against self-incrimination under art. 12 of the Massachusetts Declaration of Rights. Commonwealthv.Lopes, 459 Mass. 165, 170 (2011), quoting Opinion of the Justices, 412 Mass. 1201, 1211 (1992). In Opinion of the Justices, supra, we stated that a person's refusal to take a breathalyzer test is testimonial in nature because it creates a "'Catch-22' situation, " where a defendant would be forced to "take the test and perhaps produce potentially incriminating real evidence; refuse and have adverse testimonial evidence used against him at trial." We explained that a refusal is akin to a defendant stating, "I have had so much to drink that I know or at least suspect that I am unable to pass the test, " and ...

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