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 defendantâs 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 defenseâs 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
Commonwealthâs 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 Brennanâs 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 Brennanâs 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
Commonwealthâs 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. Kaliszewskiâs
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 machineâs 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 Draegerâs 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 victimâs 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. Smithâs
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. Webbâs death.
SO
ORDERED.
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