Com. v. Neal

• Decision Date: 21 May 1984
• Parties: COMMONWEALTH v. Daniel N. NEAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1356

464 N.E.2d 1356

392 Mass. 1

COMMONWEALTH v. Daniel N. NEAL.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued Dec. 7, 1983.

Decided May 21, 1984.

Charles S. McLaughlin, Jr., Boston, for defendant.

Joan E. Lynch, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

ABRAMS, Justice.

Convicted of operating a motor vehicle on a public way while under the influence of intoxicating liquor, G.L. c. 90, § 24(1)(a ), the defendant challenges the admission in evidence of the result of his breathalyzer test. ¹ The defendant argues that the Commonwealth's failure to preserve samples of his breath for subsequent retesting by his own expert, as well as the Commonwealth's nonpreservation of ampules used during the examination, required exclusion of the breathalyzer evidence. The defendant also argues that the Smith & Wesson Model 900A Breathalyzer, the model used to determine his blood alcohol content, is susceptible to radio frequency interference and is therefore so unreliable as to require suppression of the results of the examination. The defendant finally contends that such evidence should not be admissible because the Commonwealth's practice of conducting only one breathalyzer examination is scientifically deficient.

We conclude that the Commonwealth's failure to retain a sample of the defendant's breath does not require that the examination result be excluded. We also decide that the Commonwealth need not preserve test ampules for inspection by the defense. We hold that, in this case, the prosecution made a sufficient showing that the particular instrument used to measure the defendant's blood alcohol content was not susceptible to radio frequency interference. Finally, we decide that a second breath test, though advisable, is not required. We therefore affirm the judgment.

We summarize the facts. On July 22, 1982, the defendant was arrested following his involvement in a two-vehicle accident in the village of Osterville. The operator of the other vehicle was driving in a northbound lane when he observed a southbound vehicle driving toward him in the northbound lane. The operator unsuccessfully attempted to avoid the oncoming vehicle, which collided with his automobile and then struck a tree on the side of the road. The Centerville-Osterville fire chief came to the scene of the accident and found the defendant, who stated that his vehicle was unregistered and uninsured and that "[y]ou might as well arrest me now." According to the fire chief, the defendant was unsteady and had a strong odor of alcohol on his breath, slurred speech, and glassy eyes. As the fire chief and the defendant walked toward a wooded area where the defendant's vehicle had come to a stop, the defendant ran away and attempted to hide. The fire chief found the defendant and persuaded him to stay at the scene of the accident until a police officer arrived.

When the officer appeared, the defendant was asked to perform several field sobriety tests. The defendant lost his balance while attempting to walk a straight line, could not locate the tip of his nose, and missed several letters while trying to recite the alphabet. The defendant was arrested and transported to the Barnstable police station, where he was booked and given Miranda warnings. The defendant elected to submit to a breathalyzer examination, which yielded a blood alcohol content reading of .14. ² The defendant was advised of his right to have an independent breathalyzer test administered at his expense by a person or physician of his choice, G.L. c. 90, § 24(1)(e ), but declined such further examination.

After being arraigned and charged with operating while under the influence of intoxicating liquor, the defendant was tried before a District Court judge and found guilty, receiving a fine and a surfine totaling $500, a suspended six-month sentence to a house of correction, and probation for two years. The defendant appealed to the jury of six session of the District Court, and thereafter filed motions to suppress the breathalyzer result as unreliable and to dismiss the case because of the Commonwealth's failure to obtain and preserve samples of the defendant's breath at the time of his arrest, failure to conduct at least two breathalyzer examinations, and failure to provide exculpatory evidence. A District Court judge, after hearing testimony on the motions over three days, denied the motions on March 28, 1983. The defendant thereupon waived a jury trial and stipulated that a police report containing the above-summarized facts could be read in evidence in lieu of trial. The judge found the defendant guilty and imposed the same sentence as the primary court. ³ The defendant filed a timely appeal to the Appeals Court. We granted the defendant's application for direct appellate review.

1. Operation of the Smith & Wesson Model 900A Breathalyzer. ⁴ We preface our discussion of the specific issues raised by the defendant with a description of the operation of the breathalyzer instrument used to obtain the challenged blood alcohol content measurement. At the suppression hearing, Dr. Harvey Cohen and Dr. James Feldman were qualified by the defendant as experts in the fields of chemistry and electrical engineering, respectively. As explained by Dr. Cohen and Dr. Feldman, the examination performed by the Model 900A unit involves passing a sample of the suspect's breath through a potassium dichromate-sulfuric acid solution, bright yellow in color. A sealed reference ampule and a test ampule, the top of which is manually broken off before the examination, each containing a specified volume of the solution, are situated in holders within the breathalyzer unit, with a photoelectric cell behind each ampule. The ampules are made of glass. Located on a movable carriage between the two ampules is a lamp that casts light in the direction of both ampules. Each photoelectric cell generates a voltage in proportion to the amount of light reaching the cell after passing through the ampule in front of the cell. A device known as a null meter measures the difference, if any, between the voltages generated by the photoelectric cells. Before an examination is conducted, the breathalyzer operator moves the lamp along its carriage by means of a knob until the null meter registers zero, indicating that the cells are receiving equal amounts of light. A pointer on a separate blood alcohol content scale calibrated from .00 to .40 per cent is then manually placed at the .00 mark.

When the instrument is "zeroed," a sample of the suspect's deep lung breath, exhaled through a mouthpiece into the instrument's breath chamber, is directed from the chamber through a bubble tube into the unsealed test ampule. The solution interacts with any alcohol in the breath sample in an oxidation process that lightens the yellow color of the solution in proportion to the amount of alcohol present. If the breath sample contains alcohol, the resulting decrease in the solution's optical density permits an increased amount of light to reach the photoelectric cell behind the test ampule, and the null meter consequently registers a voltage differential. The operator then turns the knob, moving the lamp along the carriage until the null meter again reads zero. The distance the light must be moved to obtain a zero reading on the null meter is directly related to the amount of alcohol in the breath. The knob that moves the lamp carriage also moves the pointer on the calibrated scale, generating a blood alcohol content reading. The location of the pointer after the examination has been administered is imprinted on a test card.

The officer who administered the defendant's breathalyzer examination stated that, pursuant to a written protocol issued by the police, he observed the defendant for twenty minutes prior to conducting the test to ensure that the defendant did not eat or drink anything. During this time, the officer gauged the reference and test ampules to ascertain that each contained the proper volume of solution and, after breaking off the top of the test ampule, inserted both ampules. After "flushing" the breath chamber to remove any residue from a prior examination, the officer "zeroed" the instrument as described above and performed the examination. Having recorded the result, the officer again flushed the chamber and, following standard procedure, conducted a simulator test. Designed to ascertain whether the breathalyzer unit is functioning correctly, the simulator examination is performed by passing a prepared solution containing a .15 per cent concentration of alcohol through the test ampule used during the examination of the suspect's breath sample, ⁵ and obtaining a blood alcohol content reading. The officer stated that the simulator test conducted immediately following the defendant's examination yielded a correct reading of .15.

2. Due process right to obtain breath samples and ampules. We consider initially the defendant's claim that his due process rights were violated by the Commonwealth's failure to preserve a sample of the defendant's breath for the defendant's independent testing and by the Commonwealth's routine destruction, after the defendant's breathalyzer examination, of the ampules used during the examination.

At the hearing, the defense presented, through Dr. Cohen, expert testimony indicating that samples of the defendant's breath taken at the time of arrest or at the time the breathalyzer test was performed, if made available to the defense for independent testing, might reveal inaccuracies in the breathalyzer test result obtained by the police. The validity of the result could also be subjected to scrutiny, according to Dr. Cohen, were the Commonwealth to preserve the ampules used in the breathalyzer test. The defendant argues that the Commonwealth's failure to make available to him such potentially helpful...