Com. v. Brooks

• Decision Date: 29 November 1974
• Parties: COMMONWEALTH v. Robert P. BROOKS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 901

319 N.E.2d 901

366 Mass. 423

COMMONWEALTH v. Robert P. BROOKS.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 7, 1974.

Decided Nov. 29, 1974.

James A. Shannon, Quincy, for defendant.

George G. Burke, Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY, and KAPLAN, JJ.

QUIRICO, Justice.

This case brings before us exceptions taken to the admission of breathalyzer test results in a prosecution resulting in the conviction of the defendant for operating a motor vehicle while under the influence of intoxicating liquor (under the influence). G.L. c. 90, § 24(1)(a). At the trial de novo in the Superior Court, evidence was admitted over the defendant's objection showing the results of a breathalyzer test which had been taken with the defendant's consent at the time of his arrest. He now seeks a nw trial, alleging that it was error to permit the jury to receive and consider the breathalyzer evidence in the form in which it was introduced. ¹

General laws c. 90, § 24(1)(e), inserted by St.1961, c. 340, permits introduction of 'evidence of the percentage, by weight, of alcohol in the defendant's blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or . . . breath . . ..' The statute establishes a series of presumptions ² which vary with the blood alcohol concentration. If this concentration or 'percentage' is .05 or less, there is a presumption that the defendant was not under the influence; if the 'percentage' is between .05 and .10, ³ there is no presumption; and if the 'percentage' is greater than .10, there is a presumption that the defendant was under the influence.

The breathalyzer used to perform the test on the defendant, a Model 900 machine manufactured by the Stephenson Corporation, in the words of the defendant, 'purports to measure the percentage of alcohol in the blood by volume.' As the defendant acknowledges, G.L. c. 90, § 24(1)(e), permits the results of breath analysis to be introduced in evidence in prosecutions for driving while under the influence. The statute, however, specifies that 'evidence of the percentage, by weight,' is what can be admitted. As noted above, the defendant believes and contends that the breathalyzer measures percentage by volume. Arguing that expressio unius est exclusio alterius, see General Elec. Co. v. Commonwealth, 329 Mass. 661, 664, 110 N.E.2d 101 (1953), the defendant asserts that breathalyzer test results such as those involved in this case are inadmissible because they do not measure 'percentage, by weight.' We believe that the defendant has misunderstood the meaning of the statute and the workings of the breathalyzer. Clarification of our conclusion necessitates some discussion of both legislative history and principles of chemical analysis.

In this century the automobile has become a major implement of life and death. Recently there have been over 16,000,000 motor vehicle accidents occuring each year, producing more than 50,000 deaths annually. U.S. Bureau of the Census, pocket Data Book, U.S.A1973 64, 283 (1973). The relationship between intoxicating liquor and such accidents was recognized early in the age of the automobile. See, e.g., St.1909, c. 534, § 22, making it a crime to operate an automobile or motor cycle while under the influence. Periodic empirical studies have confirmed the intuitively obvious: persons who drive while under the influence are likely to kill or injure themselves or others. A three year study (1963--1965) of 100 single car fatalities conducted by the Massachusetts State Division of Alcoholism, for example, revealed that over seventy-five per cent of the dead drivers had been drinking. See 1968 Senate Doc. No. 980.

The national attempt to cut down on the incidence of driving under the influence has been impeded by the difficulty of discovering just how much a driver has been drinking. Many of the outward manifestations of intoxication may by symptomatic of nonalcohol related disease or trauma. Newman, Proof of Alcoholic Intoxication, 34 Ky.L.J. 250, 253, nn. 2, 3 (1946). Moreover, the absence of the visible signs of intoxication may also be misleading. For one thing, it is generally recognized that a person's capacity to drive may be impaired at a subclinical stage of intoxication. Watts, Some Observations on Police-Administered Tests for Intoxication, 45 N.C.L.Rev. 34, 48 (1966). For another thing, the experienced, older drinker often has the ability to 'pull himself together' when under observation and to hide the signs of his true condition. Erwin, Defense of Drunk Driving Cases (3d ed.) § 9.02 (1974).

Because of these shortcomings in clinical observation, law enforcement authorities enlisted the aid of scientists to develop biochemical analyses which could ascertain levels of intoxication. Since what we term intoxication is simply the effect of alcohol on the brain, brain analysis would produce accurate indicia. Newman, supra, at 263. As Dr. Newman points out, however, brain tissue is certainly not readily accessible. Fortunately, several body fluids have been shown to reflect alcohol consumption relatively faithfully. Along these lines, urine, saliva, spinal fluid, blood, and alveolar (deep lung) breath have all found favor at one time or another as material for alcohol concentration analysis. Blood, for various reasons, first emerged as the analytical material of choice. Newman supra, at 263--266. Later, however, breath tests, which are easier to administer than blood tests, were improved to the extent that they became the most popular means of testing for alcohol levels. Erwin, supra, §§ 18.01, 18.02.

In 1939, the National Safety Council and the American Medical Association published reports concluding that particular blood alcohol levels should be considered as evidence presumptive of the presence or absence of the influence of alcohol on driving. The levels established were .05 'percent' or less, which would create a presumption that the defendant was not under the influence, .05 'percent' to .15 'percent,' which would create no presumption, and .15 'percent' and above, which would create a presumption that the defendant was under the influence. These reports are discussed, among other places, in Richardson, Modern Scientific Evidence (2d ed) § 13.1 (1974), and Erwin, supra, § 14.02. The findings of the American Medical Association and National Safety Council committees were reflected by the Uniform Vehicle Code, § 11--902 (1952 version), which adopted the .05 and .15 'percent' cut-off figures for the purpose of establishing presumptions regarding the influence of alcohol. ⁴ This uniform act served as the pattern for legislation in a great many States, including Massachusetts. In fact, 1961 Senate Doc. No. 1589, one of the bills which culminated in St.1961, c. 340, now G.L. c. 90, § 24(1)(e), duplicated the provisions of § 11--902 of the uniform code.

The defendant contends that '(t)he words 'percentage, by weight, of alcohol' . . . have a common and approved usage.' Cases are cited expressing our rule that statutes must be construed as written and cannot be rewritten judicially. Milton v. Metropolitan Dist. Commn., 342 Mass. 222, 227, 172 N.E.2d 696 (1961). Boylston Water Dist. v. Tahanto Regional Sch. Dist., 353 Mass. 81, 84, 227 N.E.2d 921 (1967). It is apparently the defendant's contention that the words 'percentage, by weight, of alcohol in the defendant's blood' denote a ratio formed by dividing the weight of the alcohol by 100 of the same weight units of blood. ⁵ That is to say that both the dividend and the divisor must be weights expressed in comparable units. Thus, according to this argument, the 'percentage, by weight, of alcohol in the . . . blood' could be expressed only as ounces of alcohol/100 ounces of blood, or as milligrams of alcohol/100 milligrams of blood, and so forth.

This argument, however, considers the words 'percentage, by weight,' alone; such a narrow reading is contrary to our rule of construction that words in a statute must be considered in light of the other words surrounding them. Animal Rescue League of Boston v. Assessors of Bourne, 310 Mass. 330, 333, 37 N.E.2d 1019 (1941). The context in which the words at issue appear includes at least the following: 'evidence of the percentage, by weight, of alcohol in the defendant's blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by chemical test or analysis of his breath, shall be admissible and deemed relevant' (emphasis added). Since every phrase of a statute should be given some effect, Milton v. Metropolitan Dist. Commn., supra, 342 Mass. at 225, 172 N.E.2d 696, COMMONWEALTH V. MERCY HOSP., --- MASS. ---, 306 N.E.2D 435 (1974)^A, we must ascertain what 'percentage, by weight,' means as that term is used in connection with chemical tests and analyses of blood alcohol concentrations.

It appears that the concentration of alcohol in biological fluids such as blood is usually expressed as the weight of alcohol per unit of volume of the fluid. Alcohol and Highway Safety, A Report to the Congress from the Secretary of Transportation, U.S. Department of Transportation (1968) (hereinafter D.O.T. Report), in Drunk Driving Cases: Prosecution and Defense 148--149 (Freeman ed. 1970). Erwin, supra, § 15.04. Watts, supra, at 50--51, fn. 53. One of several such weight/volume ratios is expressed as the number of grams of alcohol per 100 cubic centimeters, or milliliters, of blood. This ratio is 'usually referred to simply as the percent of alcohol in the blood.' Erwin, supra, § 15.04. We believe this is the ratio required by § 24(1)(e) and by the comparable statutes in other jurisdictions. ⁶

In medical and other scientific usage, the concentration of alcohol in the blood is frequently expressed as milligrams of alcohol per 100 milliliters of fluid. D.O.T. Report, in Freeman, supra,...