Rapoza
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
The defendant, Roger A. Ferrell, was charged in District Court with (1) operating a motor vehicle while under the influence of intoxicating liquor or operating a motor vehicle with a percentage, by weight, of alcohol in the blood of .08 or more, third offense (G. L. c. 90, § 24(1)(a)(1), (2) a marked lane violation (G. L. c. 89, § 4A), and (3) inspection sticker violation (G. L. c. 90, § 20). A District Court jury convicted him of operating a motor vehicle under the influence while the percentage of alcohol in his blood was .08 or more, third offense. He was also found responsible for the inspection sticker violation but not responsible for the marked lane violation. On appeal, the defendant claims that he was denied the scope of protection afforded by the confrontation clause of the Sixth Amendment to the United States Constitution when the judge, over the defendant's objection, admitted a certificate and related documents from the office of alcohol testing (OAT) as to the accuracy of the defendant's blood alcohol level.
Background. At about 1:00 A.M. on January 31, 2009, Trooper Ryan Dickerson observed a motor vehicle traveling on Dalton Avenue in Pittsfield with an expired inspection sticker. The trooper followed the vehicle for about a mile. After confirming the status of the inspection sticker, and further observing that the vehicle had failed to make a right hand turn while traveling in a right turn lane only lane, the trooper stopped the vehicle. The trooper asked the driver, identified as the defendant, for his license and registration. The defendant appeared to have some trouble responding to the request, but after several minutes eventually produced both his license and registration. The trooper smelled the odor of alcohol within the defendant's vehicle and asked the defendant if he had been drinking. The defendant admitted to having four or five beers.
At trial, the defendant testified that he had six beers at Charlie's Bar in Pittsfield before his vehicle was stopped by the trooper.
The defendant failed the various field sobriety tests. The trooper concluded that the defendant was intoxicated and arrested him for operating a motor vehicle while under the influence of intoxicating liquor.
At the Cheshire Barracks, the defendant submitted to a breathalyzer test. The trooper, a certified breath test operator, performed the test and recorded a blood alcohol level of .15 percent. At trial, Trooper Michael O'Neil testified for the Commonwealth. Pursuant to 501 Code Mass. Regs. § 2.09 (2006), O'Neil's official title with respect to the breathalyzer was 'Officer in Charge,' as he was responsible for the maintenance of the breathalyzer and its documentation. He described the different components that comprise the breathalyzer and the calibration tests that he performed periodically to ensure that it was working properly. He testified that he changed an internal testing solution about once a month and that the calibration test on that must always be between .14 percent and .16 percent. He also testified that on the day of the defendant's arrest and submission to the breath test, the machine was working properly. Over the defendant's objection, the Commonwealth introduced in evidence certified breathalyzer and related documents from the OAT.
Discussion. The defendant argues on appeal that the judge committed an error of constitutional dimension when he admitted the OAT certification records as they were testimonial evidence, introduced by the Commonwealth without an opportunity to cross-examine the OAT technician who tested the machine. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532. We reject the defendant's argument because the OAT documents were admissible under the hearsay exception for business records, see Commonwealth v. Zeininger, 459 Mass. 775, 782-784 (2011), and the records are nontestimonial in nature as they do not bear on a direct element of the offense charged, but rather 'bear only on the admissibility or credibility of the evidence.' Id. at 786.
For the foregoing reason, the judgment is affirmed.
So ordered.
By the Court (Rapoza, C.J., Smith & Vuono, JJ.),