Complaint received and sworn to in the
Newburyport Division of the District Court Department on November 13, 2017.
The case was tried before Allen G. Swan,
Michael A. Contant for the defendant.
Emily R. Mello, Assistant District
Attorney, for the Commonwealth.
SULLIVAN, J. After a jury trial, the defendant, Amy S.
Daigle, was convicted of operating a motor vehicle while under the influence of
alcohol (OUI). See G. L.
c. 90, § 24 (1) (a) (1). This appeal calls upon us
to decide what foundation must be laid before the Commonwealth may introduce
evidence of a breath test result that was recorded by the breathalyzer machine
as a refusal. We conclude that before
evidence is admitted to show that the breath test did not register an adequate
breath sample, the Commonwealth must comply with the applicable statutes and
regulations governing the admissibility of breath test results. See G. L. c. 90, § 24K; 501
Code Mass. Regs. §§ 2.00 (2016).
That is, the Commonwealth must show, at a minimum, that the person
administering the test is a certified operator and that the breathalyzer
machine is functioning properly in the manner contemplated by the statute and
regulations. No such showing was made in this case. We therefore vacate the judgment and set
aside the verdict.
Background. The jury could have found the following
facts. On the evening of November 12,
2017, the defendant, while driving, failed to stop at a stop sign on Sunset
Drive in Newbury. Officer Daniel Jenkins
observed the infraction and stopped the defendant's car. When he reached the car, Jenkins smelled
alcohol and noticed that the defendant's eyes were glassy. She slurred her words in response to
Jenkins's questions and admitted to having two glasses of wine at a
restaurant. At Jenkins's request, the defendant got out of the car to
perform field sobriety tests. She told
the officer that she had two knee surgeries ten to twenty years earlier, but
stated she could perform the field sobriety tests and agreed to do so. She did not perform the first field sobriety
test to the officer's satisfaction and failed the second. That is, for the first test, she left
approximately six inches of space between her feet on the nine-step walk and
turn test, and stepped off the white line by one or two inches multiple times. She removed her high heeled boots (at
Jenkins's suggestion) before attempting to perform the second test, the
one-legged stand test, but was unable to perform it. Jenkins stopped the second test.
Jenkins determined that the defendant was
intoxicated and arrested her. Another
officer arrived to assist. After she was
handcuffed with her hands behind her back, the defendant became very upset,
yelled, and told the officers that she had been the victim of a crime in the
past. The officers then handcuffed her
with her hands in front of her body and put her in the cruiser. While in the cruiser she said her mouth was
dry and licked her lips repeatedly. The
second officer on the scene also noted that she smelled of alcohol.
At the police station, Jenkins asked the
defendant if she would take a breath test, and the defendant agreed. The test was administered by Jenkins. No one else observed it. Jenkins instructed the defendant to blow into
the breathalyzer machine by making a firm seal with her lips and exhaling when
told to do so. During the test Officer
Jenkins watched the breathalyzer machine; he only occasionally glanced at the
defendant and did not offer any testimony as to what he saw when he did. The defendant attempted to perform the test three
times. After three attempts, no breath
sample registered on the breathalyzer machine.
The defendant asked several times to take
the test again, but as Jenkins explained at trial, after three attempts the
breathalyzer machine resets. He did not
administer a second test. Upon learning
that she could not take the test again, the defendant became upset and
agitated, a fact which the Commonwealth attributed to inebriation, and which
the defendant testified was due to the fact that she was anxious, suffered from
posttraumatic stress disorder (PTSD) as a result of her trauma, had suffered a
panic attack when she was handcuffed and arrested, and wanted to take the test
The admissibility of the breath test
evidence was hotly contested at trial.
As the judge observed, at the time of the trial, "the DA's Office
is -- most of the DA's Offices throughout the state are not offering them
--." On the day of trial the
Commonwealth, having received notice that the defendant intended to call her treating
social worker to explain the symptoms of PTSD and the impact of that disorder
on the day of her arrest, filed a motion in limine to introduce evidence that
the defendant consented to the breath test and ultimately failed to properly
complete the test, to which the defendant objected. The defendant also moved to bar the breath
test reading, and to continue the case in order to conduct discovery. During the course of the hearing the
Commonwealth maintained that it was entitled to introduce both the consent form
and the inadequate sample result from the breathalyzer. The judge allowed
the Commonwealth's motion, and denied the defendant's request to exclude the
At trial, Jenkins was not qualified as a
certified operator. The accuracy of the
breathalyzer was contested, as was the adequacy of compliance with statutory
and regulatory mandates, but there was no testimony regarding the breathalyzer,
how it worked, or whether it properly registered air intake. Over the defendant's renewed objection,
Jenkins testified that the defendant failed to provide a sample "[b]ecause
when someone actually gives a sufficient sample, the machine indicates so. And it did not." Later, the officer further explained that
"after three attempts, the machine basically just -- it kind of like
resets. And after three attempts, it's
basically -- you know, it turns into a refusal." The defendant again objected and moved to
strike. The judge struck the reference
to a "refusal" and instructed the jury to disregard it, but the
remainder of the testimony stood.
Discussion. When a defendant has consented to a breath
test, evidence that she has failed to provide a sufficient sample may be
introduced, in appropriate circumstances, to show that she is incapable of or
has attempted to avoid giving a sample.
See Commonwealth v. AdonSoto, 475 Mass. 497, 501-502 (2016);
Commonwealth v. Curley, 78 Mass. App, Ct. 163, 168 (2010). See generally G. L. c. 90,
§ 24K; 501 Code Mass. Regs. §§ 2.01, 2.07, 2.09, 2.12, 2.14 (2016);
Commonwealth v. Camblin, 471 Mass. 639, 649 (2015), S.C., 478 Mass. 469
(2017). Here, the sole evidence of a
failure or refusal to perform the breath test was the reading from the
"[T]he relevant statutes condition
the evidentiary admission of breath test results on satisfaction of certain
requirements. Of relevance here is the
requirement that a certified operator perform the breath test 'using infrared
breath-testing devices' according to methods approved by the Secretary of Public
Safety (Secretary) in accordance with regulations promulgated by the
Secretary. G. L. c. 90,
§ 24K." Camblin, 471 Mass. at
645. The evidence offered in this case
failed to meet the statutory and regulatory requirements in at least two
respects -- that the person administering the test was certified, and that the
methodology used was in fact reliable.
See generally G. L. c. 90, § 24K; 501 Code Mass. Regs.
§§ 2.01, 2.02, 2.07, 2.13, 2.14 (2016); Camblin, supra at 645-646. There was no evidence of the officer's
background and training regarding the breathalyzer, and it was error to admit
the testimony over objection without first making a judicial determination that
the officer was a certified breath test operator. See generally G. L. c. 90,
§ 24K; 501 Code Mass. Regs. § 2.07.
Nor was there evidence that the breathalyzer machine was operating
properly, that is, that it could accurately detect the breath of a test
subject. There was no evidence that the
equipment was certified, or that it had undergone periodic testing. See 501 Code Mass. Regs. §§ 2.06, 2.12
The Commonwealth maintains that the fact
that "the officer's observations were made from the instrument itself is
of no import." However, absent a
proper showing that the machine was functioning properly and the officer had the
qualifications to operate it, the officer's testimony that there was no breath
sample because the "machine indicates so" was "merely an
opinion, ipse dixit." Peterson v.
Foley, 77 Mass. App. Ct. 348, 354 (2010).
The failure to register a reading is itself a result, and that result is
not admissible unless the statutory standards are met.
The Commonwealth characterized this case
both at trial and on appeal as a Curley case, a characterization that the judge
accepted. This case is unlike both
Curley and AdonSoto. AdonSoto and Curley
reiterate that refusal evidence is testimonial and therefore inadmissible. See Commonwealth v. Lopes, 459 Mass. 165, 170
(2011); Opinion of the Justices, 412 Mass. 1201, 1211 (1992). However, once consent to a breath test has
been given, the failure to produce a breath sample is not improper refusal
evidence. Rather, in the proper
circumstances, the failure to provide a breath sample may be introduced either
to show that the defendant is too impaired to take the test or to show
consciousness of guilt. See AdonSoto,
475 Mass. at 501-502; Curley, 78 Mass. App. Ct. at 168. Neither case stands
for the proposition that evidence of an inadequate breath sample may be
admitted when the statutory and regulatory prerequisites regarding
admissibility of breath test results have not been met.
Because the evidence of an insufficient
breath sample was admitted in error, and the objection was preserved, we review
to determine whether the "error was 'prejudicial' or
'harmless.'" Commonwealth v. Adams,
485 Mass. 663, 669 n.11 (2020), citing Commonwealth v. Vinnie, 428 Mass. 161,
163, cert. denied, 525 U.S. 1007 (1998); Commonwealth v. Flebotte, 417 Mass.
348, 353 (1994). The evidence in this case
was sufficient to support a conviction, but was not so overwhelming as to be
harmless where, as here, the defendant mounted a vigorous defense. She introduced medical records documenting
three prior knee surgeries, and claimed that her poor performance on the field
sobriety tests was attributable to her knee problems. Her treating social worker testified that she
suffered from PTSD, flashbacks, and associated conditions that caused the
defendant to hyperventilate. The social
worker explained that a person who was hyperventilating would be unable to get
sufficient air into the lungs. The
defendant testified that once handcuffed she had a panic attack (due to the
previous assault) and was hyperventilating, and that her mouth was dry. The challenged evidence went to the heart of
The jury also focused on the breath test
reading, and the reasons for it. During
its deliberations, the jury sent the following questions pertaining to the
breath test evidence to the judge:
the officer repeat the breathorlizer [sic] test one additional time? Can we see the transcript?"
statistics related to people's inability to push air into the breathorlizer
suggest that the jury closely considered why no breath sample was detected.
In these circumstances we "'cannot
say with fair assurance' that 'the error did not influence the jury, or had but
very slight effect'" (citation omitted).
Commonwealth v. Parent, 465 Mass. 395, 402 (2013). Accordingly, we vacate the judgment and set
aside the verdict.
 She pleaded guilty to the second
offense portion of the charge. The judge
found her not responsible for a marked lanes violation but found her
responsible for a civil violation of failure to stop for a stop sign.
 In the rare case where the defendant is
the proponent of the evidence, the Commonwealth must comply with its discovery
obligations, and the defendant must submit evidence in a form that comports
with the statute and regulations.
 The moon roof of the defendant's car
was open on a cold night, which the Commonwealth argued was an indication of
inebriation. The defendant testified she
opened the moon roof because she had a hot flash.
 During the hearing on the parties'
motions in limine, the prosecutor represented that the Commonwealth currently
was not introducing breath test results not because of the inaccuracy of the
test, but because of then-pending litigation regarding discovery violations by
the Commonwealth's office of alcohol testing.
Given these circumstances, defense counsel stated that he was not on
notice that the Commonwealth would introduce breath test evidence and asked to
exclude the breathalyzer test result. He
questioned the accuracy of the tests and sought a continuance to obtain
discovery concerning the machine in question, a machine which defense counsel
represented had a high number of refusals.
 At trial defense counsel renewed his
objections stating, "Judge, I don't think there's any evidence -- there's
any indication that there's even a keeper of the record, let alone someone that
knows the machine -- how it works, the inner workings on the machine. There's no indication that this person has
any basis of knowledge for [testifying there was no breath sample]. He's going into the -- if that's the case, I
want to be able to go into the accuracy of the machine, because he's speaking
to the fact that he could tell that there was an insufficient sample from what
the machine registered, when in fact that's not -- that's not the question
here. The question is whether she
consented and made an attempt to blow into the machine. He would have to witness that, not able to
tell that just from looking at a screen."
The judge said, "Well, he testified that he learns this from what
the screen shows," to which defense counsel responded, "But if the
machine's not working properly, there is no way to determine that. If he's not looking at her."
 Because an insufficient sample reading
is a breath test result, the defendant was entitled to discovery regarding the
accuracy of the reading and the reliability of the breathalyzer machine. As far as we can tell on this record, the
Commonwealth did not provide the breath test result in automatic discovery; the
defendant did not have the "BT ticket." When the Commonwealth moved on the day of
trial to admit the consent form and the test results, not just in rebuttal to
the defendant's expert witness (whose testimony the defendant offered to withdraw),
but in the Commonwealth's case-in-chief, this constituted a material change in
the Commonwealth's position with respect to the admission of breath test
results in OUI cases. The defendant
objected, claiming, among other things, that the accuracy of the breathalyzer
machine was also at issue in pending litigation, and asserted that the machine
used in this instance "has an unusual amount of refusals based on
insufficient air sample." Defense
counsel further explained that he would have asked for additional discovery on
the machine itself had he been aware of the Commonwealth's intention to rely on
the results of the breathalyzer test to show the defendant had
"refused" to submit a sufficient breath sample. The prosecutor maintained that the defendant
had proffered her treating social worker as an expert to explain why there was
an insufficient sample, and that the defendant should have known that the
reading would be admitted in a "Curley case." The judge allowed the Commonwealth's motion
and admitted what he described as "Curley evidence." Both the prosecutor's motion and the judge's
ruling were premised on the misapprehension that an insufficient sample reading
was not a breath test result. Because it
was, the defendant was entitled to the same discovery as she would have had in
any other OUI case in which a breath test result was admitted.
 No challenge to the reliability or
admissibility of the breath test result itself is evident from the opinions in
either Curley or AdonSoto. In addition,
in each case a police officer testified that he had watched the defendant take
the test and that the defendant did not follow the instructions to make a tight
seal around the mouthpiece, thus permitting the inference that the defendant
either was grossly impaired or intended to game the test by giving an
 In view of our disposition, we find it
unnecessary to reach the defendant's alternative grounds of appeal.