Com. v. Smythe

Decision Date06 January 1987
Citation23 Mass.App.Ct. 348,502 N.E.2d 162
CourtAppeals Court of Massachusetts

David C. Casey, Boston, for defendant.

Claudia R. Sullivan, Asst. Dist. Atty., for the Com.


FINE, Justice.

A jury of six in a District Court convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor and of failing to stay within marked lanes. The Commonwealth's case consisted of testimony from the arresting officer about the events, the results of a breath test administered on a device known as the "Intoxilyzer 5000" revealing a blood alcohol content of .17 percent weight by volume, and a videotape taken of the defendant while he was being booked and while the breath test was being administered. The defendant attempted unsuccessfully to have the judge suppress the breath-test results on the ground that the "Intoxilyzer 5000" does not perform a "chemical test or analysis of his breath" within the meaning of G.L. c. 90, § 24(1)(e), as appearing in St.1980, c. 383, § 1. The defendant's case consisted of his own testimony as to his activities, including the consumption of alcohol, during the night of his arrest. In addition, he offered to produce an expert witness to challenge the accuracy of the breath-test results. The proposed witness, one Patrick Demers, testified at length on voir dire concerning his qualifications and opinions. Without any findings or explanation, the trial judge excluded all testimony from Demers.

In this appeal, the defendant contends that it was error for the judge (1) to allow evidence concerning the breath-test results and (2) to exclude the expert's testimony. We rule that the Intoxilyzer 5000 is a breath-testing device capable of yielding results which may be admissible in evidence under G.L. c. 90, § 24(1)(e ). However, we rule that, in the circumstances, the judge erred in excluding all expert testimony from Demers in the absence of any proper basis for doing so. The defendant, thus, is entitled to a new trial on the conviction of operating under the influence. As none of the reasons for reversal applies to the conviction of failing to stay within marked lanes, that conviction stands.

1. The Intoxilyzer 5000 is a chemical test or analysis of the breath.

General Laws c. 90, § 24(1)(e), provides that, so long as certain conditions are met, including the consent of the defendant to the test,

"[i]n any prosecution for [operating a motor vehicle while under the influence of intoxicating liquor], 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 to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; ...."

The Legislature has recognized that "the [Smith & Wesson] Model 900A Breathalyzer and other scientific instruments that measure blood alcohol content on the basis of breath samples have for some time been deemed to satisfy the Commonwealth's 'general acceptance' standard for admissibility of scientific evidence...." Commonwealth v. Neal, 392 Mass. 1, 17, 464 N.E.2d 1356 (1984). The Intoxilyzer 5000 is an infrared photometric instrument designed to measure ethyl alcohol in the breath. Its operation is based upon the scientific principle that vaporized alcohol will absorb infrared light of a wavelength of 3.39 microns at a rate different from that of other chemical compounds. 1 The device measures the amount of infrared light absorbed and translates that measurement into a blood alcohol content reading. Although it is a more sophisticated instrument than the breathalyzers used since the early nineteen sixties, its functioning is based, nevertheless, upon the same underlying scientific principle (known as Henry's Law): that, at any given temperature, the ratio between the concentration of alcohol in one's blood and that in the alveolar air in the lungs is a constant: 2,100:1. See 4 Gray, Attorneys' Textbook of Medicine par. 133.73(1) (1986).

"Chemistry" is a "science that deals with the composition, structure, and properties of substances...." Webster's Third New International Dictionary 384 (1971). "Chemical analysis" has been defined as "the corpus of all techniques whereby any exact chemical information is obtained." The New Columbia Encyclopedia 520 (1973), cited in Dayton v. Schenck, 63 Ohio Misc. 14, 409 N.E.2d 284 (Dayton Municipal Ct. 1980). The defendant argues that the phrase "chemical test or analysis" is limited to tests or analyses performed with chemicals. The statutory authorization, however, is not by its terms limited to tests which utilize chemical reactions. The machine in question analyzes the suspect's breath for the presence of ethyl alcohol, an identifiable chemical compound, and measures its concentration by means of a physical test routinely used for that purpose by chemists. In every other jurisdiction in which the issue has been raised, Intoxilyzer 5000 machines or similar devices have been determined to perform "chemical" analyses. See Dollar v. State, 287 Ark. 153, 697 S.W.2d 93 (1985); Husk v. State, 476 N.E.2d 149 (Ind.Ct.App.1985). 2 The Legislature would not have intended to limit the authorization it was providing for the important public purpose of facilitating reliable proof in drunk driving prosecutions to the technology which happened to be available when the original breath-test legislation was passed in 1961. St.1961 c. 340. The instrument in question is, in our view, of a type that the Legislature must have meant to include. The evidence of the test result was properly admitted.

2. The expert testimony was improperly excluded. The qualifications and opinions of Demers, the expert witness offered by the defendant, were explored at length on voir dire. The qualifications of the witness in matters relating to alcohol consumption and testing methods are substantial. 3 He also had sufficient knowledge of the particular facts so that his opinions were not formed in the abstract. He stated that he was familiar with the operation of infrared breath-analysis machines, that he had reviewed the police department's ownership and maintenance records of the machine in question, and that he had viewed the videotape of the defendant's breath test and inspected the defendant's test printout.

According to his voir dire testimony, Demers was prepared to state, among other things: (a) that the particular Intoxilyzer 5000 machine used for the defendant's breath analysis was not properly installed, maintained, tested, calibrated, or operated; (b) that the defendant, as observed by the witness on the videotape, did not display the clinically observable signs expected of an individual with a .17 percent blood alcohol content; (c) the amount of alcohol a person of the defendant's size would need to consume during the relevant time period in order to obtain a .17 percent blood alcohol content; and (d) what the defendant's blood alcohol content would have been if he had consumed only the amount of alcohol the defendant said he consumed. The Commonwealth objected to the introduction of the evidence. The prosecutor took issue before the trial judge with the substance of some of Demers' opinion, and objected to Demers' qualifications. Demers, the prosecutor pointed out, was not a physician; he did not own an Intoxilyzer 5000; and he had received no specific training or licensing on that machine. The prosecutor argued that the expert's examination of the videotape was an insufficient basis for the conclusions he reached about the extent of the defendant's intoxication. Finally, the prosecutor maintained that Commonwealth v. Connolly, 394 Mass. 169, 464 N.E.2d 1106 (1985), barred any expert testimony as to what the blood alcohol content would be of a person who had consumed the amount of alcohol the defendant said he had consumed. Without offering defense counsel an opportunity to respond to the Commonwealth's objection, the judge stated, "I'm going to exclude the evidence."

On appeal, the Commonwealth concedes that a defendant charged with operating a motor vehicle while intoxicated may use expert testimony to challenge the accuracy of his particular breath-test results. Although direct authority in this Commonwealth concerning expert testimony in drunk driving cases is sparse, a contrary rule could deprive a defendant of the opportunity to present a meaningful defense. See Commonwealth v. Neal, 392 Mass. at 8, 464 N.E.2d 1356; California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). See and compare Commonwealth v. Connolly, 394 Mass. at 175, 474 N.E.2d 1106. 4 Certainly, the reliability of chemical tests and the application of scientific principles and formulae are matters outside the common knowledge of jurors, and an expert's opinion could be of assistance to them. See Commonwealth v. Francis, 390 Mass. 89, 98-99 & n. 6, 453 N.E.2d 1204 (1983). The Commonwealth now seems to dispute only the qualifications of the expert, an issue which, the Commonwealth correctly points out, ordinarily lies within the judge's discretion. That discretion, however, is not without limits. See Commonwealth v. Banuchi, 335 Mass. 649, 655, 141 N.E.2d 835 (1957); Commonwealth v. United Books, Inc., 389 Mass. 888, 896, 453 N.E.2d 406 (1983). In a criminal case the denial of a defendant's right to present expert testimony merits close scrutiny. On this record, where we can discern no acceptable basis for what seems to us the arbitrary blanket rejection of Demers' opinion testimony, the limits were exceeded. Demers appeared to possess "sufficient skill, knowledge [and] experience in the field of his testimony that the jury [might...

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9 cases
  • Com. v. DiGeronimo, 94-P-630
    • United States
    • Appeals Court of Massachusetts
    • July 13, 1995
    ...Mass. 169, 175, 474 N.E.2d 1106 (1985); Commonwealth v. Marley, 396 Mass. 433, 439, 486 N.E.2d 715 (1985); Commonwealth v. Smythe, 23 Mass.App.Ct. 348, 352-354, 502 N.E.2d 162 (1987). We are aware that the Supreme Judicial Court has recently described blood and breath test evidence, on the ......
  • Commonwealth v. Camblin
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 12, 2015 also called “ethanol”); American Heritage Dictionary of the English Language 41 (2006) (same). Cf. Commonwealth v. Smythe, 23 Mass.App.Ct. 348, 350, 502 N.E.2d 162 (1987) (describing different breathalyzer as being “designed to measure ethyl alcohol in the breath”).The Commonwealth also ......
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    • United States
    • Appeals Court of Massachusetts
    • June 3, 1999
    ...that require expert testimony on an issue which the judge thought unnecessary. Unlike the situation in Commonwealth v. Smythe, 23 Mass.App.Ct. 348, 352-353, 355, 502 N.E.2d 162 (1987), where the judge summarily dismissed the defendant's offer of proof concerning expert testimony on the brea......
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    • United States
    • Virginia Court of Appeals
    • February 21, 1995
    ...has been defined as " 'the corpus of all techniques whereby any exact chemical information is obtained.' " Commonwealth v. Smythe, 23 Mass.App.Ct. 348, 350, 502 N.E.2d 162, 164 (1987) (quoting The New Columbia Encyclopedia 520 (1973)). Holding that an intoxilyzer performed a chemical test, ......
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1 books & journal articles
  • Chemical evidence
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • March 31, 2022
    ...Court of Appeals recently held that the Intoxilyzer 5000 is a chemical test under the Massachusetts statute. See Commonwealth v. Smythe , 502 N.E.2d 162 (Mass.App.Ct. 1987). The court rejected the defense argument that because the Intoxilyzer Model 5000 is an infrared analyzer, and hence is......

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