Heard: February 7, 2017.
Vehicle, Operating under the influence. Intoxication.
Evidence, Intoxication, Opinion. Practice, Criminal, Witness.
Witness, Police officer. Complaint received and sworn to in
the Chicopee Division of the District Court Department on
June 30, 2014.
case was tried before Bethzaida Sanabria-Vega, J.
Caffrey for the defendant.
A. Baran, Assistant District Attorney, for the Commonwealth.
Present: Green, Meade, & Agnes, JJ.
jury trial, the defendant was convicted of operating while
under the influence of intoxicating liquor (OUI), in
violation of G. L. c. 90, § 24(1)(a)(1). On appeal, she
claims that the judge improperly admitted a State
trooper's testimony concerning her impairment to operate
a motor vehicle, and that the evidence was insufficient to
support her conviction. We affirm.
early morning hours of June 29, 2014, the Massachusetts State
police were conducting an OUI checkpoint on Route 33 in
Chicopee. State Trooper John Haidousis, who had ten
years of experience working in law enforcement,
assigned to work the secondary location, i.e., the parking
lot of Monroe Muffler, a business located directly off of
Route 33. The business parking lot was brightly lit,
the ground was flat and paved, and individual parking spots
were marked visibly by painted lines on the pavement.
about 12:15 A.M., the defendant, as directed by another
trooper, drove her vehicle into the secondary location
parking lot without incident. Trooper Haidousis directed her
to park in one of the marked parking spots. The defendant
failed to do as instructed, instead parking her vehicle
"crooked[ly]" or "diagonally across two
parking spots." Upon request, the defendant produced a
driver's license and perhaps a registration; Trooper
Haidousis determined that she was seventy-one years old.
Trooper Haidousis spoke to the defendant he detected an odor
of alcoholic beverage coming from her mouth, and observed her
eyes to be "bloodshot and glassy." Trooper
Haidousis asked the defendant whether she had consumed any
alcohol, to which she replied that she had consumed three
beers, and had started drinking around midnight. Her speech
was "a bit slurred." Based on these observations,
Trooper Haidousis asked the defendant to perform field
sobriety tests, to which she consented.
the defendant got out of her car, the trooper again detected
the smell of alcohol coming from her person. She was wearing
flip-flop-style shoes. He instructed her to stand in one
spot, and as he explained the field sobriety tests, he
observed her "swaying a bit back and forth." When
asked if she had any injuries that would prevent her from
performing the tests, the defendant replied that she had
arthritis in her hips, but she nonetheless agreed to perform
Haidousis first had the defendant perform the "nine-step
walk and turn" test. To perform this test, the defendant
was instructed to stand up straight, and to keep her arms by
her sides. She was told to take nine forward steps on a
painted straight line in the parking lot, heel to toe, while
counting out loud to nine. At the ninth step, the defendant
was to turn around and walk nine steps back in the same
fashion, i.e., heel to toe, while she counted out loud to
nine, keeping her hands by her sides the entire time. The
defendant listened to the instructions, and began the test
the first part of the test, the defendant did not take all
nine steps, instead taking only seven, and she stepped off of
the painted line. She also failed to touch her heel to her
toe, as instructed, on each step. On the return trip, she
only took six of the nine required steps, again stepping off
of the line, and again missing the heel to toe instruction.
Trooper Haidousis explained in his testimony that failure to
take all nine steps is an "indicator that we look
defendant was then instructed to complete the "one-leg
stand" test, which is another standardized field
sobriety test to detect impairment due to alcohol
consumption. She was instructed to stand with her arms by her
sides. Then she was to raise one leg of her choice
approximately six inches off of the ground, while she kept
her arms by her sides. Once her leg was elevated, the
defendant was required to count out loud until she reached
thirty. Trooper Haidousis used his wristwatch to track the
accuracy of the defendant's thirty-second count. The
defendant listened to the instructions and began the test
without incident. However, the defendant was unable to
complete the test as instructed as she put her foot down
after only ten or eleven seconds. She was also "swaying
from side to side, not standing up straight, " and
failed to count out loud, as she had been
final field sobriety test the trooper had the defendant
perform was the recitation of the alphabet. In preparation
for this test, the trooper asked the defendant what was the
highest level of education she had attained, and if she knew
the alphabet. The defendant properly recited the alphabet.
he finished administering the field sobriety tests, Trooper
Haidousis "formed the opinion that [the defendant] was
under the influence of alcohol." When asked if he made a
determination as to the level of the defendant's
impairment, the trooper replied, over objection, that
"her ability -- she was impaired to operate a motor
vehicle." Trooper Haidousis based this determination on
his detection of an odor consistent with alcohol emanating
from the defendant, her glassy and bloodshot eyes, her
slurred speech, her admission to consuming alcohol, and her
performance on the field sobriety tests, as well as the
manner in which she parked her car in the secondary location.
Based on these factors, Trooper Haidousis arrested the
defendant for OUI. Subsequent to Trooper Haidousis's
testimony, the parties stipulated to the elements of
operation and public way.
of her final charge to the jury, the judge instructed the
"Your function as the jury is to determine the facts of
this case. You are the sole and exclusive judges of the
facts. You alone determine what evidence to accept, how
important any evidence is that you do accept, and what
conclusions to draw from all the evidence. You must apply the
law as I give it to you, to the facts as you determine them
to be, in order to ...