Grasso
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
On appeal from a conviction of operating a motor vehicle while under the influence of intoxicating liquor, third offense, the defendant contends that (1) the failure to issue a citation in compliance with G. L. c. 90C, § 2, requires dismissal of the complaint or, alternatively, exclusion of evidence of a blood alcohol test, and (2) the Commonwealth presented insufficient evidence of the underlying offense and the defendant's prior Florida conviction. We affirm the conviction of operating under the influence of intoxicating liquor, second offense, but conclude that the evidence of the prior Florida conviction is insufficient.
A jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor (OUI), in violation of G. L. c. 90, § 24(1)(a)(1), under both 'impaired ability' and 'per se' theories of violation. See Commonwealth v. Colturi, 448 Mass. 809, 810 (2007). A judge subsequently found the defendant guilty of a third offense, based on prior convictions in Florida and in Massachusetts.
1. Compliance with G. L. c. 90C, § 2. For present purposes, the defendant asserts error in the denial of her motions (1) to dismiss the complaint and (2) to exclude a blood alcohol test. Assuming that these challenges are properly before us, we discern no error.
The defendant no longer presses her claim that a motion judge erred in denying her motion to dismiss (second) relating to the enhanced offense complaint. In any event, we discern no error on that account because the new citation merely alerted the defendant to a sentence enhancement, not a new substantive offense. See Commonwealth v. Miranda, 441 Mass. 783, 788 (2004).
As pertinent here, G. L. c. 90C, § 2, as amended by St. 1985, c. 794, § 3, provides that
'failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except . . . [2] where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator . . . .'
We agree with the motion judge that Trooper Sean Kelley was justified in delaying issuing the defendant a citation until the day after the accident because 'additional time was reasonably necessary to determine the nature of the violation.' When Kelley arrived at the scene of the two-car accident, the defendant was in an ambulance awaiting transport to the hospital, and the other operator, Bruce Pierce, had already been transported there. Although the defendant told Kelley that Pierce crashed into her vehicle, Pierce told Kelley that the defendant's vehicle, which was stopped in traffic, suddenly cut directly across the road into Pierce's path. Although Kelley smelled a strong odor of alcohol on the defendant at the scene and at the hospital, given the operators' differing accounts of how the accident occurred and the defendant's agitated condition and conflicting explanations regarding her consumption of alcohol, further investigation was warranted. The statute's dual purposes of guarding against 'fixes' and providing a violator prompt notice of charged offenses were not frustrated by the one-day delay in mailing the defendant a citation. See Commonwealth v. Babb, 389 Mass. 275, 283 (1983); Commonwealth v. Kenney, 55 Mass. App. Ct. 514, 518 (2002). Nor was Kelley 'seriously deficient or negligent' in mailing the citation the following day. See Commonwealth v. Cameron, 416 Mass. 314, 316-318 (1993).
Kelley issued the defendant citations for operating under the influence, endangering, and a marked lanes violation.
Indeed, given the serious nature of the accident, Kelley's discussion with the defendant regarding her alcohol consumption, and the defendant's awareness of her high blood alcohol test, the defendant was not without notice that charges would likely follow. See ibid.
We reject the contention that dismissal of the complaint or exclusion of the blood alcohol test was required because delay in issuing the citation prevented the defendant from preserving the hospital blood sample or securing her own independent blood test. Hospital officials advised the defendant shortly after admission that her blood test reflected an alarming blood alcohol level of .369 percent. Although asserting that the test was wrong, the defendant did not seek another test or ask the hospital to preserve the sample. As custody and control of the blood sample was in the hospital and not the Commonwealth, any failure regarding its preservation is not attributable to the Commonwealth. See generally Commonwealth v. Williams, 455 Mass. 706, 715 (2010).
Indeed, given the defendant's theory that the blood sample was mislabeled and belonged to someone else, it is unclear what retesting of the sample might have accomplished.
2. Evidence of the underlying offense. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), the evidence sufficed to convict the defendant under both 'impaired ability' and 'per se' theories. See Commonwealth's brief at 40-43. Pierce's testimony describing the defendant's operation of her vehicle, Kelley's description of the defendant's odor of alcohol, bloodshot and glassy eyes, slurred speech and admission to consuming wine, and the defendant's blood alcohol test results amply established that the defendant's ability to operate was impaired by alcohol. See Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011). The blood alcohol test results also established the 'per se' basis for conviction.
3. Evidence of prior convictions. To establish the defendant's prior convictions, the Commonwealth introduced the defendant's Registry of Motor Vehicles (RMV) driving history, together with a certified copy of a Florida conviction record. Even granting the admissibility of the Florida conviction record and the defendant's RMV driving history, see G. L. c. 90, § 24(4), the evidence was insufficient to establish that the defendant is the same individual previously convicted in Florida in 1991. As explained in Commonwealth v. Maloney, 447 Mass. 577, 588-589 (2006):
'[T]o the extent that [Melanie's Law] might be read as allowing proof of a prior conviction solely by a record bearing the same name as the defendant's, it should be obvious that a conviction record bearing the name 'John Smith' can only be prima facie evidence that someone named John Smith was convicted previously. . . . [T]he prior conviction record is not sufficient (indeed, is hardly even probative) unless linked to the defendant.'
'Mere identity of name' is not enough to establish such a link. See Commonwealth v. Koney, 421 Mass. 295, 302 (1995). Nor do we believe that identity of name and birth date, without more, is enough to establish beyond a reasonable doubt that the Cynthia Descoteaux convicted in 1991 in Florida is the same Cynthia A. Descoteaux presently before the court. Compare Commonwealth v. Bowden, 447 Mass. 593, 596-602 & n.6 (2006) (defendant's name, date of birth, and prior addresses and a photograph corresponded to information on court records of conviction, which included more substantial identifying information such as social security number, gender, and height, which matched RMV records); Commonwealth v. Gonsalves, 74 Mass. App. Ct. 910, 912 (2009) (court docket sheets and probation records corresponded in name, date of birth, and address). Put differently, the mere inclusion of a prior Florida conviction in the defendant's RMV driving history is not sufficient to link the conviction to the defendant and assure that the conviction is hers and not that of someone else with the same name and birth date.
To prove the August 9, 1991, Florida conviction, the Commonwealth pointed to a notation on the defendant's RMV record indicating a conviction on that date and introduced a Florida record of conviction of the same date for a woman with the name Cynthia Descoteaux (no middle initial) and a birth date the same as that of the defendant, but with a Florida address not linked in any way to the defendant. Even were we to assume that 'Descoteaux' is an unusual name, additional identifying information is needed to link the Florida conviction to the defendant and prove beyond a reasonable doubt that the defendant is the same individual who was convicted in Florida. Compare Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 547 (2008) (defendant's unusual name and his middle initial, birth date, and previous addresses matched information in conviction records).
On the other hand, to prove the Massachusetts conviction, the Commonwealth introduced the defendant's RMV history which contained the defendant's name, date of birth, and Massachusetts driver's license number corresponding to that on the citation in this case. The history reflected a conviction in Lawrence District Court on March 18, 1999. The transcript also reflects that the Commonwealth put before the judge 'an original court docket' memorializing the defendant's guilty plea on '3/18/99,' and an RMV imaging that contained the defendant's name and an address that corresponded to the address on the conviction from March 18, 1999.
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We affirm the conviction of operating under the influence of alcohol, second offense, but so much of the judgment as adjudges the defendant guilty of a third offense is vacated. The sentence is vacated, and the case is remanded for resentencing.
So ordered.
By the Court (Grasso, Mills & Trainor, JJ.),