Commonwealth v. Zeininger

• Decision Date: 24 May 2011
• Docket Number: SJC–10758.
• Citation: 947 N.E.2d 1060,459 Mass. 775
• Parties: COMMONWEALTHv.Zoanne ZEININGER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 775

947 N.E.2d 1060

COMMONWEALTH

v.Zoanne ZEININGER.

SJC–10758.

Supreme Judicial Court of Massachusetts, Franklin.

Argued Feb. 7, 2011.Decided May 24, 2011.

Patricia A. DeJuneas, Boston, for the defendant.

Steven Greenbaum, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, COWIN, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.¹CORDY, J.

The principal issue in this case is whether an annual certification, and accompanying diagnostic records, attesting to the proper functioning of the breathalyzer machine used to test a defendant's blood alcohol content were admissible in a criminal prosecution for operating a motor vehicle while under the influence of intoxicating liquor, G.L. c. 90, § 24(1)( a )(1), without the live testimony of the technician who had performed the certification test on the machine.The certification and supporting records were created as part of a regulatory program providing standardized mechanisms for the routine maintenance of all breathalyzer machines throughout the Commonwealth.Given this fact, we conclude that they were admissible in evidence as business records pursuant to G.L. c. 233, § 78, and were not testimonial statements within the scope of protection afforded by the confrontation clause of the Sixth Amendment to the United States Constitution.²As such, their admission in this case was not error, and the conviction of the defendant, Zoanne Zeininger, is affirmed.

1.Background.³On the evening of April 13, 2007, Zeininger drove through a flashing red light at the intersection of Main Street and Bank Row in Greenfield without bringing her vehicle to a complete stop.Officer Patrick Buchanan of the Greenfield police department pulled Zeininger's vehicle over.He observed that Zeininger's eyes were bloodshot, her speech slurred, and she smelled of alcohol.Zeininger told him that she consumed two pints of ale at a local tavern and, later, another “half pint or so” at a friend's home.Officer Buchanan instructed Zeininger how properly to complete various field sobriety tests.After observing her perform four different tests, he concluded that Zeininger was intoxicated and arrested her for operating a motor vehicle while under the influence of intoxicating liquor (OUI), in violation of G.L. c. 90, § 24(1)( a )(1).

At the Greenfield police station, Zeininger telephoned a friend to discuss whether she should provide consent to submit to a chemical analysis test of her breath to determine the alcohol content in her blood (breathalyzer test).Eventually, she consented to administration of the breathalyzer test.During her testimony at trial, she recounted that the stress of her arrest exacerbated her acid reflux condition and that she regurgitated acid into her mouth.Zeininger also testified that just moments before taking the breathalyzer test, she“spit up” acid into her mouth and then spit that reflux fluid into a trash can.Officer Buchanan, who was observing Zeininger through a doorway from an adjacent room, testified that he did not see Zeininger spit into the trash can and that the closest trash can in the station was situated ten feet from the booking room where Zeininger was awaiting administration of the breathalyzer test.

Officer Buchanan proceeded to administer the breathalyzer test.Zeininger gave two breath samples that each registered a blood alcohol content of 0.10 per cent on the breathalyzer device.After a two-day jury trial, Zeininger was convicted of operating a motor vehicle with a blood alcohol level of 0.08 percent or greater, and sentenced to a one-year term of probation and ninety-day loss of license.G.L. c. 90, § 24D.Zeininger appealed, and we transferred the case to this court on our own motion.

2.Statutory framework.To support a prima facie case for OUI, the prosecution must prove three elements: (1)the defendant was in physical operation of the vehicle; (2) on a public way or place to which the public has a right of access; and (3) had a blood alcohol content percentage of .08 or greater, or was impaired by the influence of intoxicating liquor.G.L. c. 90, § 24(1)( a )(1).The first alternative of the third element is proved by admission in evidence of a report memorializing the results of a chemical test of the defendant's blood alcohol content of the percentage by weight, which in practice is commonly conducted using a breathalyzer machine.SeeG.L. c. 90, § 24(1)( e );Commonwealth v. Steele,455 Mass. 209, 210, 914 N.E.2d 886(2009).

General Laws c. 90, § 24(1)( e ), places several conditions on the admissibility of the results of a breathalyzer test, and the prosecution must prove compliance with those conditions as a foundational matter before the judge may admit the results in evidence.⁴Commonwealth v. Lopes, 459 Mass. 165, 173, 944 N.E.2d 999(2011).Under G.L. c. 90, § 24K, the results of a breathalyzer test “shall not be considered valid” and, thus, are inadmissible in evidence at a subsequent prosecution for OUI, unless “performed by a certified operator using a certified infrared breath-testing device”(emphasis supplied).A breathalyzer test must further comply with several specific “rules and regulations regarding satisfactory methods, techniques and criteria for the conduct of such tests,” as promulgated by the Secretary of Public Safety.⁵G.L. c. 90, § 24K. 501 Code Mass. Regs. §§ 2.00(2006).See501 Code Mass. Regs. § 2.51.

The regulations promulgated pursuant to G.L. c. 90, § 24K, establish an office of alcohol testing (OAT) within the State police crime laboratory.501 Code Mass. Regs. § 2.10.The OAT is charged with maintaining a list of approved breathalyzer machines, subject to several enumerated criteria.501 Code Mass. Regs. § 2.38.⁶In order to effectuate the requirement that all breathalyzer tests are conducted on certified devices, the regulations provide that OAT must annually certify that any breathalyzer machine in use is compliant with certain regulatory criteria.501 Code Mass. Regs. §§ 2.39,2.40.SeeCommonwealth v. Barbeau,411 Mass. 782, 786, 585 N.E.2d 1392(1992).The certification process consists of several diagnostic tests performed by OAT technicians, including a blind test of the breathalyzer machine and its calibration simulator using an approved solution to ensure that the machine registers a reading that matches the known alcohol content of the solution.⁷SeeOAT Breath Test Operator Manual§§ 10.0–10.4(2006).Acetone is also added to the solution to gauge the breathalyzer machine's ability to detect interferants.Id. at § 10.2.The effective dates of certification of the breathalyzer machine and the simulator must be annotated on the report created by the breathalyzer machine at the completion of a test (breathalyzer results report).⁸501 Code Mass. Regs. §§ 2.39–2.40.SeeG.L. c. 90, § 24K.The breathalyzer results report also lists the model and serial number of the breathalyzer machine, its calibration simulator device, and the type of alcohol simulation solution used to conduct the required calibration analysis.⁹Breath Test Operator Manual, supra.

Because this notation of certification appears on the same report as the results of the breathalyzer test, as a matter of practice, it is admitted in evidence and published to the jury in an OUI prosecution.In this case, the breathalyzer results report indicates that the Greenfield police department machine used on the night of Zeininger's arrest was certified on February 13, 2007, and valid through February 13, 2008.The Commonwealth also introduced OAT documents detailing the results of the diagnostic testing performed by OAT technicians as part of this annual certification process.¹⁰

The notation of certification on the breathalyzer results report and accompanying diagnostic records (collectively, OAT certification records) serve two independent evidentiary purposes.First, the OAT certification records are proof of conformity with the foundational predicate to admissibility of the breathalyzer test results required by G.L. c. 90, § 24K, and501 Code Mass. Regs. §§ 2.38–2.39.Second, proof of OAT certification may be relevant to aid the jury in weighing the reliability of the test results.Commonwealth v. Durning,406 Mass. 485, 490–494, 548 N.E.2d 1242(1990)(defendant has right to challenge accuracy of machine);Commonwealth v. Yameen,401 Mass. 331, 336, 516 N.E.2d 1149(1987), cert. denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 198(1988)(adequacy of breathalyzer test procedure goes to weight of evidence).SeeMass.G. Evid. § 104(e), at 9(2011)(jury may consider evidence relevant to weight and credibility).

3. Discussion.Zeininger's principal argument on appeal is that the judge committed an error of constitutional dimension when she admitted in evidence the OAT certification records.¹¹Zeininger argues that (1) the OAT certification records amounted to out-of-court statements that did not fall within any cognizable exception to the hearsay rule, and (2) were testimonial evidence, introduced by the Commonwealth without an opportunity to cross-examine the OAT technician who tested the breathalyzer machine, in violation of the confrontation clause of the Sixth Amendment.SeeMelendez–Diaz v. Massachusetts,––– U.S. ––––, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314(2009)( Melendez–Diaz );Crawford v. Washington,541 U.S. 36, 51–52, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004)( Crawford ).

We have held that the admissibility of an out-of-court statement in a criminal trial is to be determined by a two-part inquiry: “a statement must first be evaluated for admissibility under normal evidence rules, i.e., whether it qualifies as a hearsay exception.”Commonwealth v. Nardi,452 Mass. 379, 391, 893 N.E.2d 1221(2008)( Nardi ), quotingCommonwealth v. Burgess,450 Mass. 422, 431 n. 6, 879 N.E.2d 63(2008).“Then, the [challenged] statement must be appraised under the criteria of ...