Judicial Court, Superintendence of inferior courts.
Evidence, Medical record, Blood alcohol test.
Constitutional Law, Confrontation of witnesses.
Motor Vehicle, Operating under the influence.
Practice, Criminal, Confrontation of witnesses,
C. Harrington for the defendant.
L. Rose, Assistant District Attorney (Joseph A. Pieropan,
Assistant District Attorney, also present) for the
defendant, Sarah C. Ackerman, appeals from a judgment of a
single justice of the county court allowing the
Commonwealth's petition pursuant to G. L. c. 211, §
3. We affirm.
was charged in a complaint with operating while under the
influence of intoxicating liquor, second offense, pursuant to
G. L. c. 90, § 24 (1) (a.) (1), and a marked lanes
violation, pursuant to G. L. c. 89, § 4A. The charges
resulted from a single vehicle accident in which the vehicle
that Ackerman was driving struck a utility pole and rolled
over. After the accident, Ackerman was transported to the
hospital where medical personnel administered several
computerized tomography (CT) scans and conducted several
tests, including a blood alcohol test. Although Ackerman
recognizes that medical records are generally admissible
pursuant to G. L. c. 233, § 79, she filed a motion in
limine to exclude evidence of the blood alcohol test from
those records based on her right to confrontation under the
Sixth Amendment to the United States Constitution. A judge in
the District Court allowed the motion and later denied the
Commonwealth's motion for reconsideration. The
Commonwealth then asked a different judge to "review and
overrule" the decision. The second judge declined, but
did allow the Commonwealth's request to stay the
proceedings until the following day to allow the Commonwealth
time "to appeal [from the] in limine ruling." The
Commonwealth filed its G. L. c. 211, § 3, petition that
same day, and on the following day, a single justice allowed
it without a hearing.
Ackerman correctly notes, the fact that the Commonwealth does
not have any other remedy does not make review pursuant to G.
L. c. 211, § 3, automatic, and this court rarely allows
Commonwealth appeals from interlocutory rulings.
Commonwealth v. Narea, 454 Mass. 1003, 1004 n.l
(2009), and cases cited. It is equally true, however, that a
single justice has the discretion to address the merits of
any such petition and that "we will not disturb the
judgment absent an abuse of discretion or clear error of
law." See Id. at 1004. There is no such abuse
of discretion or clear error of law here.
to well-established Massachusetts law, G. L. c. 233, §
79, "permits the admission in evidence, in the
judge's discretion, of certified hospital records 'so
far as such records relate to the treatment and medical
history'" of the patient. Commonwealth v.
Dube, 413 Mass. 570, 573 (1992), quoting G. L. c. 233,
§ 79. We construe the statute liberally; "[t]hus, a
'record which relates directly and mainly to the
treatment and medical history of the patient, should be
admitted, even though incidentally the facts recorded may
have some bearing on the question of liability.'"
Commonwealth v. Dargon, 457 Mass. 387, 394 (2010),
quoting Commonwealth v. DiMonte, 427 Mass. 233, 242
(1998). If, in short and as is relevant here, the blood
alcohol test administered to Ackerman was "performed as
a routine medical practice in the course of the treatment of
the defendant following a motor vehicle accident, "
Dube, supra at 570, then the evidence
related to the test is admissible.
hearing on Ackerman's motion in limine to exclude the
blood alcohol test evidence, the trial court judge noted that
"with regard to the medical tests that were done, there
[are] references to reasons why [the medical personnel at the
hospital] ordered . . . some other testing. . . . There is no
reason stated anywhere in the medical records . . . as to why
they ordered the blood alcohol test." It may well be
that the medical records do not expressly state why the blood
alcohol test was administered. That test, however, was just
one of a battery of tests and CT scans that medical personnel
performed in the course of treating Ackerman. She had been in
a single vehicle accident; a police officer who responded to
the scene of the accident had reason to believe that Ackerman
was intoxicated; and numerous entries in her medical record
similarly so indicate. Because Ackerman was agitated and
unable to remain still while medical personnel were treating
her, she was administered Ativan, a sedative. In the
circumstances, it is clear on this record that the blood
alcohol test was merely one of a number of tests conducted as
a part of assessing the condition of and treating the patient
as presented. Indeed, it is eminently logical that, as the
Commonwealth suggests, medical personnel would need to know
whether Ackerman was intoxicated prior to administering this
medication to her.
single justice did not err or abuse his discretion in
vacating the trial judge's order allowing the motion in
limine and in ordering that the blood alcohol test evidence
 After the judgment allowing the
Commonwealth's petition, the defendant filed a memorandum
in the full court pursuant to S.J.C. Rule 2:21, as amended,
434 Mass. 1301 (2001). That rule applies only when a single
justice "denies relief from a challenged interlocutory
ruling in the trial court." Id. It does not
apply here, where the single justice granted relief. We
therefore issued an order, after the defendant filed her
memorandum, stating that the appeal "may proceed in the
regular course in accordance with the Massachusetts Rules of
Appellate Procedure." The single justice's ruling
was a final judgment from which an appeal may be taken to the
full court. See Commonwealth v. Clark, 454 Mass.
1001, 1001 (2009), citing McMenimen ...