Heard: February 7, 2017.
action commenced in the Supreme Judicial Court for the county
of Suffolk on July 19, 2016.
case was reported by Spina, J.
Christopher DeMayo for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Timothy St. Lawrence, pro se, amicus curiae, submitted a
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
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.
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.
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. 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.
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.
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 ...