Opinion
11-P-974
04-06-2012
COMMONWEALTH v. LARRY S. WHITMAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in District Court, the defendant was convicted of driving while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1). Because we conclude that the defendant's motion for a required finding of not guilty was properly denied and there was no error or abuse of discretion in permitting the breath test technician to testify about the operation of the breathalyzer machine, we affirm.
The Commonwealth presented its case under both prongs of the OUI statute: a 'per se' violation and an impaired ability violation. See Commonwealth v. Colturi, 448 Mass. 809, 810 (2007). The jury found the defendant guilty under both theories. Contrary to the defendant's argument, there was ample evidence to support the verdict under both prongs of the statute. First, both breathalyzer test results revealed blood alcohol levels of .08, thereby establishing a per se violation. Second, there was more than sufficient evidence to support a conviction under the impaired ability prong. Indeed, while the Commonwealth need not prove that a defendant was actually operating his vehicle in an unsafe manner, see Commonwealth v. Tynes, 400 Mass. 369, 375 (1987), there was ample evidence here that he was.
State Trooper William Loiselle testified that he observed the defendant driving erratically (crossing over the center line four times). After stopping the defendant's car, Trooper Loiselle approached the defendant and detected a strong odor of alcohol and observed the defendant's eyes as 'red [and] watery.' The defendant's speech was slurred, and he admitted to having 'one drink.' Trooper Loiselle conducted field sobriety tests, which the defendant failed.
There is no merit to the defendant's claim, raised for the first time on appeal, that State Trooper James McKenna, a certified breath test operator and technician, was not qualified to testify as an expert. Trooper McKenna's training and experience qualified him to explain in general terms how the breathalyzer machine operates and that the machine is periodically tested to ensure proper calibration. There was no error let alone a substantial risk of a miscarriage of justice. Nor is there any merit to the defendant's argument that his confrontation clause rights were violated. See Commonwealth v. Zeininger, 459 Mass. 775, 786-787 (2011).
Judgment affirmed.
By the Court (Kantrowitz, Berry & Vuono, JJ.),