Commonwealth v. Colturi

Citations: 448 Mass. 809; 864 N.E.2d 498; 2007 Mass. LEXIS 263

Court: Massachusetts Supreme Judicial Court; April 19, 2007; Massachusetts; State Supreme Court

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The case addresses the admissibility of breathalyzer test results in a criminal trial for operating a motor vehicle while under the influence of intoxicating liquor (OUI) as defined by G. L. c. 90, 24 (1)(a)(1). Following the 2003 amendments to the OUI statute, a violation can be established either through a per se violation (blood alcohol level of .08% or greater) or impaired ability violation. A District Court judge ruled that results from a breathalyzer test taken more than an hour after the defendant's last vehicle operation cannot be used to prove a per se violation without expert retrograde extrapolation testimony. For impaired ability violations, expert testimony is required to establish both the blood alcohol level at the time of operation and its significance regarding impairment. However, in impaired ability cases, the Commonwealth can present evidence that the breathalyzer result was greater than zero without expert testimony, indicating alcohol presence.

The legal matter is under review following the Commonwealth's petition for extraordinary relief and an interlocutory appeal. The court concluded that expert testimony for retrograde extrapolation is not necessary for breathalyzer results if administered within a reasonable time after driving. Nevertheless, if the Commonwealth pursues an impaired ability theory with a breathalyzer result of .08% or above, expert testimony regarding impairment significance is required.

In the underlying facts, Anne Colturi was stopped by a State trooper for erratic driving at 9:10 p.m., who detected alcohol and noted her impaired condition. Colturi was arrested and consented to two breathalyzer tests at 10:15 p.m. and 10:19 p.m., which revealed a blood alcohol level of .15%. She was subsequently charged with violating the OUI statute.

In 2003, the Massachusetts Legislature amended G. L. c. 90, § 24, expanding the OUI statute to make it a violation to operate a vehicle with a blood alcohol level of .08 or higher, in addition to being under the influence of intoxicating liquor. The amendment removed prior language that allowed a 'permissible inference' that individuals with a .08 blood alcohol level were under the influence. The interpretation of whether these changes affected the admissibility of breathalyzer test results in OUI prosecutions is a matter of statutory interpretation, requiring an understanding of the Legislature's intent and the context of the amendments.

The purpose of G. L. c. 90, § 24, is to protect the public from impaired drivers, and the 2003 amendments aimed to enhance public safety and prevent loss of life and federal highway aid funds. The Legislature's intention was to strengthen the safeguards against impaired driving. The court has historically recognized the reliability of breathalyzer evidence, consistently ruling that delays in administering such tests affect the weight rather than the admissibility of the evidence. Prior rulings have not required expert testimony on retrograde extrapolation for breathalyzer results to be admissible, a stance supported by other state courts.

The court has determined that expert testimony on retrograde extrapolation is not required for the admissibility of breathalyzer test results in Operating Under the Influence (OUI) prosecutions. This ruling imposes significant burdens on the Commonwealth, as many OUI cases are prosecuted daily, and there is a limited availability of state-employed experts on retrograde extrapolation. The Commonwealth argues that it often cannot obtain necessary information to create an accurate retrograde extrapolation due to defendants' constitutional rights to remain silent regarding their alcohol consumption prior to driving. The court noted that if the Legislature intended to change the admissibility rules when amending the OUI statute in 2003, it would have done so explicitly; instead, the existing language regarding the relevance of breathalyzer results remains unchanged. 

The only substantial change in the statute was the removal of the permissive inference regarding blood alcohol levels and the establishment of a per se violation for a blood alcohol level of .08 or higher. The court emphasized that breathalyzer results, when taken within a reasonable time after operation, remain relevant for jury determinations of OUI violations. Prior rulings indicate that any time delay between operation and testing affects the weight of the evidence rather than its admissibility. The court concludes that a delay of up to three hours is reasonable, though the trial judge retains discretion to determine the appropriate time frame based on specific case circumstances.

If a case involves both per se and impaired ability theories of criminal liability charged in the alternative, the admission of breathalyzer test results does not require expert testimony to establish the significance of the test level regarding the defendant's level of intoxication or impairment. The jury would be instructed that a blood alcohol content (BAC) of .08 or greater constitutes a violation of the Operating Under the Influence (OUI) statute. If the BAC is below .08, the jury may still evaluate whether the defendant was operating under the influence. The statute allows for a permissible inference of non-impairment at a BAC of .05 or less and provides no inference for levels between .05 and .08. However, if the Commonwealth only pursues a theory of impaired operation and presents a BAC of .08 or greater without establishing its relevance to intoxication, the jury may lack adequate guidance, leading to potential prejudice. In such scenarios, expert testimony linking breathalyzer results to intoxication would be necessary for admissibility. The District Court's decision is partially reversed, and the case is remanded for further proceedings. Additional rulings on breathalyzer machine certification and alcohol testing records are noted but not appealed. Retrograde extrapolation is introduced as a method for estimating a person's BAC over time, factoring in absorption and excretion rates. The relevant legal provisions from General Laws c. 90, 24 regarding the OUI statute are highlighted, detailing the admissibility of BAC evidence and the permissible inferences related to intoxication.

The absorption of alcohol into the bloodstream is influenced by several factors: (1) the type and presence of food in the stomach, (2) individual characteristics such as gender, weight, age, mental state, and drinking habits, (3) the quantity and type of alcoholic beverage consumed, and (4) the duration of drinking. After consumption stops, blood alcohol concentration (BAC) reaches a peak and subsequently decreases as the body eliminates the alcohol.

Various state laws provide guidelines on the admissibility of BAC test results as evidence of intoxication. For instance, Texas law states a BAC of .08 or more within three hours of a violation is competent evidence of being under influence at that time. Indiana allows results from tests administered within three hours of probable cause for a DUI arrest. Iowa presumes BAC results from tests taken within two hours of physical control of a vehicle reflect the concentration at the time of driving. Ohio permits BAC evidence calculated within two hours of the offense, while West Virginia accepts results if taken within two hours of arrest. Wisconsin allows BAC evidence from tests administered within three hours without the need for expert testimony. Washington permits BAC test results obtained more than two hours post-operation if they indicate .08 or higher, or any detectable level of alcohol to support DUI charges.