Commonwealth v. Smith

          RULING AND ORDER ON MOTION TO EXCLUDE BREATH TEST RESULTS

          Christine M. Roach, Justice

          In this case charging one count of Motor Vehicle Homicide (Felony), pursuant to G.L.c. 90, section 24G(a), the defense moved pre-trial to exclude the breath test results, on two grounds: 1) "the breathalyzer results are unreliable because the test was taken more than four hours after the accident"; and 2) "the Court in Ananias has deemed all breathalyzer results presumptively unreliable." Docket, Paper 24. The Commonwealth moved to admit the breath test results. Paper 23.

          Following the Final Pre-Trial Conference I denied the defense Motion because the court has discretion under Commonwealth v. Colturi, 448 Mass. 809, 816-17 (2007), and a jury may consider in its deliberations hours elapsed prior to testing, should the particular test be otherwise admissible. Commonwealth v. Marley, 396 Mass. 433, 438-39 (1985) (generally, a delay in time works to the defendant’s advantage, and goes to the weight of the evidence, not its admissibility); Commonwealth v. Pierre, 72 Mass.App.Ct. 230, 232-35 (2008) (in the vast majority of cases timing of test goes to weight, not admissibility). I also denied the Motion because I do not agree with the defense’s reading of Ananias I and II, ^[1] and the import of those decisions on either Section 24G(a) prosecutions or 501 C.M.R. section 2.00 et seq. Commonwealth v. Barbeau, 411 Mass. 782, 784-86 (1992) (admissible tests must be "done by a certified operator, on a certified device according to methods approved by the Secretary of Public Safety").

          The court and parties went on to hold a voir dire hearing, during the afternoons of March 19 and March 20, 2019, with the Commonwealth’s witness from the Office of Alcohol Testing (OAT) on the issue of the reliability of the particular breathalyzer machine used with this defendant on February 19, 2017. Following the hearing conducted on March 19-20, 2019, I ruled the Commonwealth had met its burden to demonstrate that the test was admissible, and it was then admitted at trial through the Boston Police Department witness who conducted the test. The Commonwealth also called the "Officer in Charge" of all breathalyzers at BPD. As promised the parties, the reason for my rulings are outlined briefly below.

         First, Judge Brennan’s opinion in Ananias I explicitly excluded from the class of presumptively inadmissible tests conducted on the Alcotest 9510 machine those devices calibrated and certified after September 14, 2014. Judge Brennan found machines in this excluded category satisfy evidentiary standards in all respects. See also, Commonwealth v. Camblin, 478 Mass. 469, 470 (2017) (decided after Judge Brennan’s decision). Second, the sanctions opinion in Ananias II continues to provide for potential admissibility of breathalyzer tests in cases such as this one, of alleged Motor Vehicle Homicide (Felony) pursuant to G.L.c. 90, section 24G(a), for this same time period, notwithstanding the expanded sanction imposed in other categories of cases.

          OAT is a division of the Massachusetts State Police Crime Laboratory that oversees the certification and training for the breath alcohol testing program. See, e.g., Commonwealth v. Zeininger, 459 Mass. 775, 778-871 (2011) (setting forth the statutory framework for proof of operating under the influence (OUI), G.L.c. 90, section 24(1)(a)(1), a lesser included offense of Motor Vehicle Homicide). Among its functions are the configuration, deployment, annual calibration, and maintenance of all Alcotest 9510 breathalyzers currently in use in our Commonwealth.

          The Commonwealth’s OAT voir dire witness in this case, Mr. Kaliszewski, calibrated and re-certified the Alcotest 9510 used with the defendant, a Draeger Safety Diagnostics (Draeger) machine, serial number ARBF-0118. I find this witness was qualified, diligent, knowledgeable about his work, and credible. Hearing Exhibit 1. Mr. Kaliszewski testified without contradiction or impeachment to his proper recertification and calibration of this instrument at OAT on June, 30, 2016, pursuant to the Massachusetts State Police Crime Laboratory Certificate of Calibration Procedure for the Alcotest 9510 effective May 18, 2016 (a/k/a State Police Protocol). The machine passed all of the tests. Hearing Exhibit 2; Exhibits 3-13.

         The defense elicited evidence at the voir dire hearing, based on OAT records, that sometime after Mr. Kaliszewski’s re-certification on June 30, 2016, but just before the test at issue here was administered on February 19, 2017— that is, on February 4, 2017— personnel of the manufacturer, Draeger, had custody of the ARBF-0118 at OAT, and performed some calibrations on it. Hearing Exhibits 14, 15, 17 and 18. Second, the witness testified on both direct and cross examination that the ARBF-0118 failed a test on Tuesday morning, March 19, 2019, the day of his testimony at this hearing. There were no recorded failures of this machine prior to that date. As to this second event, the parties agree if a breath testing device fails on any given occasion, the device must be recertified, and cannot be used to generate admissible test results until the recertification takes place. Commonwealth v. Rollins, 65 Mass.App.Ct. 694, 698 (2006).

          I found and ruled at hearing that neither of these events raised by the defense was probative on the issue of admissibility of the test performed February 19, 2017. A failed recertification on March 18, 2019, without more, is not probative of the machine’s proper functioning on February 19, 2017, two years earlier. As for the calibrations performed by Draeger, nothing in the record would support a court ruling that the ARBF-0118 was mis-performing in any way at that time, or that Draeger’s work, on February 4, 2017, altered the calibration and accurate performance of the machine such that the test could be deemed inadmissible. I thus found and ruled no evidence was proffered before me at hearing that the ARBF-0118 was unreliable on February 19, 2017, and the test was accordingly admissible. However, counsel was free to raise these events in the context of the reliability of test results generally with the jury, including whether the testing device "was in good working order," pursuant to District Court Criminal Model Jury Instructions 5.300 (June 2016).

         Finally, with respect to the timing of the test, the law is clear that, although three hours between time of accident and time of test is presumptively reasonable, other timeframes may also be determined to be reasonable, based on the particular facts and circumstances of the case. Colturi, 448 Mass. at 816-17. It is undisputed that in this case a time period of approximately four and one-half hours elapsed between the injuries to the victim at the 900 block on Massachusetts Avenue (at Pompeii Street), and the test administration at District B-2 station in Roxbury. It is also undisputed that during that period, a rather detailed investigation was unfolding by Boston Police involving attempts to understand and reconcile confusing and inconsistent statements by witnesses, including at least three different statements by the defendant herself about the event.

          Due to the nature and severity of the victim’s injuries, the Boston Police Department Homicide Unit was involved in the witness interviews, and that Unit at Police Headquarters was not equipped with a breathalyzer machine. Following Ms. Smith’s second recorded interview and arrest at Headquarters, she was transported directly to District B-2 for the testing. For these reasons I found and ruled on March 20, 2019 that the test results were not per se inadmissible for reasons of delay, but that instead the testing procedure and results would be submitted to the jury along with all of the other evidence and factual disputes raised by the parties about the circumstances of Ms. Webb’s death.

          SO ORDERED.

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