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Commonwealth v. Sciarretta

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 12, 2015
14-P-1105 (Mass. App. Ct. Jun. 12, 2015)

Opinion

14-P-1105

06-12-2015

COMMONWEALTH v. MICHAEL SCIARRETTA.


NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his conviction of operating a motor vehicle with a blood alcohol level of .08 percent or more, G. L. c. 90, § 24(1)(a)(1), following a jury-waived trial in the District Court. He contends that the trial judge erroneously admitted the results of a breathalyzer test and that the evidence was therefore insufficient to support a conviction. We affirm.

The issue of the admissibility of the breathalyzer test was litigated in the context of the defendant's motion to suppress. The defendant sought suppression because the Commonwealth could not authenticate the original statutory rights and consent form. The motion judge found that the arresting officer credibly testified that he had obtained consent and that the defendant had signed a statutory rights and consent form. At trial the defendant renewed his effort to exclude the evidence of the breathalyzer test by means of a motion in limine, which was denied, although the copies of the consent form were not admitted in evidence.

There were three versions of the form, and the form appeared to have been modified. The motion judge did not rely on the forms in her ruling, and the trial judge subsequently barred admission of the various copies.

Relying on the pertinent regulations governing breathalyzer tests, the defendant contends that the Commonwealth's failure to produce the original of the statutory rights and consent form posed a preliminary, foundational barrier to the admission of the breathalyzer test at trial. As a threshold matter, we observe that this argument is more properly considered as a challenge to the motion judge's ruling on the motion to suppress. The "statutory predicate[] to admissibility . . . was a foundational inquiry for the judge to consider" as a question of law. Commonwealth v. Lopes, 459 Mass. 165, 174 (2011). While the defendant is correct that the results of a breathalyzer test are admissible only if the defendant actually consented to the test, see id. at 173, he does not challenge the motion judge's factual findings that he gave such consent and that the form was filled out.

What remains, therefore, is only the question whether documentary evidence of the defendant's consent, as required under 501 Code Mass. Regs. § 2.14(1) (2010), had to have been admitted in evidence in order for the fact finder (here, the judge) to assess the weight and credibility of the breathalyzer results, see Commonwealth v. Lopes, supra at 174 n.10. "The interpretation of a regulation is a question of law which we review de novo." Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 410 (2014). "For a breathalyzer test result to be valid and admissible in evidence, the Commonwealth must demonstrate compliance with those regulations that 'go to the accuracy of the [breath testing] device or manner in which the [breathalyzer] test was performed.'" Id. at 411, quoting from Commonwealth v. Kelley, 39 Mass. App. Ct. 448, 453 (1995). Consent is not a condition that goes to the accuracy of the test. Contrast Commonwealth v. Pierre, 72 Mass. App. Ct. 230, 232 (2008).

The regulations issued pursuant to G. L. c. 90, § 24K, state, in part, "The arrestee's consent to a breath test shall be documented by the arresting officer or the [breath test operator]." 501 Code Mass. Regs. § 2.14(1).

Moreover, the regulatory requirement that consent be documented does not render the production of the original consent form the exclusive method of proving a defendant's consent to a breathalyzer test, or the Commonwealth's efforts to document that consent. "Deviations from meticulous compliance" go to the weight, not the admissibility of the test results. Commonwealth v. Zeininger, 459 Mass. 775, 792, cert. denied, 132 S. Ct. 462 (2011), quoting from Commonwealth v. Kelley, 39 Mass. App. Ct. at 453. The motion judge did not err in denying the motion to suppress, as the Commonwealth presented evidence of the defendant's consent, which was credited by the motion judge, before offering the results of the test at trial. Once properly admitted at trial, it was for the finder of fact to weigh the evidence. Commonwealth v. Lopes, supra.

There is no definition of "document" in the regulations. See 501 Code Mass. Regs. §§ 2.02, 2.14(1) (2010). The statute requires consent, but does not specify a particular form of documentation. See G. L. c. 90, § 24(1)(e).

Judgment affirmed.

By the Court (Vuono, Wolohojian & Sullivan, JJ.),

The panelists are listed in order of seniority.
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Clerk Entered: June 12, 2015.


Summaries of

Commonwealth v. Sciarretta

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 12, 2015
14-P-1105 (Mass. App. Ct. Jun. 12, 2015)
Case details for

Commonwealth v. Sciarretta

Case Details

Full title:COMMONWEALTH v. MICHAEL SCIARRETTA.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Jun 12, 2015

Citations

14-P-1105 (Mass. App. Ct. Jun. 12, 2015)