Heard: February 11, 2016.
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.
Supreme Judicial Court granted an application for direct
Christopher DeMayo for the defendant.
Kukafka, Assistant District Attorney, for the Commonwealth.
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. 
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.
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.
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.
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.
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.
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,
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. 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.
Evidence of failed breathalyzer test.
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.
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