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Commonwealth v. Hebb

Supreme Judicial Court of Massachusetts, Suffolk

June 30, 2017

COMMONWEALTH
v.
WILLIAM J. HEBB.

          Heard: February 7, 2017.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 19, 2016.

         The case was reported by Spina, J.

          Christopher DeMayo for the defendant.

          Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.

          Timothy St. Lawrence, pro se, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          HINES, J.

         In this case, we decide whether double jeopardy principles preclude the Commonwealth from retrying the defendant on a complaint charging a violation of G. L. c. 90, § 24 (1) (a.) (1), on the theory of operation of a motor vehicle with a percentage of alcohol in his blood of .08 or greater (per se violation), after a jury acquitted him on the theory of operation of a motor vehicle while under the influence of intoxicating liquor (impaired ability violation). The Commonwealth prosecuted the one-count complaint on both theories, and after the jury returned a verdict on the impaired ability violation only, the judge declared a mistrial on the per se violation. A new complaint issued charging only a per se violation of G. L. c. 90, § 24 (1) (a) (1). Claiming that retrial violated his double jeopardy rights where the complaint issued after an acquittal on the impaired ability violation, the defendant filed a motion to dismiss the complaint. The judge denied the motion.

         The defendant sought relief in the county court pursuant to G. L. c. 211, § 3. The case is before us on a reservation and report from a single justice of this court. We conclude that double jeopardy principles do not preclude retrial where the Commonwealth prosecuted the case on both theories and the jury reached a verdict on only one of those theories.

         Background.

         We set forth the facts the jury could have found. On May 16, 2013, the defendant was struck by a vehicle while he was operating his motorcycle on a public way.[1] At the scene of the collision, the defendant admitted to having had several alcoholic beverages and was uncooperative with the paramedics. After the defendant complained of pain, he was transported to the Milford Hospital emergency department.

         The treating physician observed that the defendant's skin appeared "flushed" and that his speech was slurred, and detected "an odor of alcohol on [his] breath." Based on these observations, the physician determined that the defendant was "intoxicated[, ] probably with alcohol." With the defendant's consent, medical personnel drew blood samples for alcohol levels to be determined. Subsequent testing of the blood samples by a blood analyst in the State police crime laboratory showed a blood alcohol level of .133. On cross-examination, the blood analyst acknowledged that the tubes holding the defendant's blood samples also contained an anticoagulant to prevent blood clotting and that if the anticoagulant is not properly activated, the blood sample could clot, and yield an artificially high blood alcohol test result.

         During closing arguments, defense counsel urged a finding that the defendant had not been impaired while operating his motorcycle, and that the blood alcohol test results were unreliable because the Commonwealth failed to present evidence that the anticoagulant was properly activated prior to testing. The prosecutor argued that (1) the defendant's behavior and appearance at the scene of the collision and at the hospital ...


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