Appeals Court, May 30, 2014

It is settled law that a breathalyzer test result showing a blood alcohol level of .08 or above, administered within a "reasonable time" of the operation of a motor vehicle is sufficient to prove a defendant guilty beyond a reasonable doubt of violating G.L. c. 90, § 24(1)(a )(1), under the "per se" theory.

After being arrested for operating under the influence of alcohol, the defendant was given a breath test approximately fifty minutes after the initial stop.  The result of the breath test was a 0.09.  At trial, the jury was presented with both the under the influence and per se theories of G.L. c. 90, §24(1) (a) (1).  The jury returned a verdict on the per se theory of the complaint.  The defendant then filed a rule 25(b) (2) motion seeking entry of a finding of not guilty based on the fact that because the Commonwealth has a “time of offense” per se law rather than a “time of test law,” the Commonwealth’s evidence of a breath test result of 0.09 fifty minutes after the time of the stop without more, was insufficient to prove that the defendant had a blood alcohol level of 0.08 or above at the time of operation.

The judge granted the motion, saying:

"What I don't accept is that I can figure out how the jury could have reached a verdict as to what the blood alcohol level was 50 minutes earlier [than the time when the breathalyzer was administered].... I do not believe that the Commonwealth presented sufficient evidence that a reasonable fact finder could believe that at the time of operation the defendant was operating his motor vehicle with a blood alcohol level of .08 or greater. Therefore I am granting the defendant's motion for a required finding of not guilty notwithstanding the jury's verdict.... I welcome [an appeal by the Commonwealth] because I do believe that the Appellate Courts need to address this issue."

The judge believed that the Commonwealth's evidence was insufficient to convict the defendant because the prosecution did not introduce "retrograde extrapolation" evidence so that  the jury could have concluded beyond a reasonable doubt that the defendant had operated the vehicle with a blood alcohol level of .08 percent or higher. 

In Commonwealth v. Colturi, 448 Mass. 809, 810 (2007) the Supreme Judicial Court held that "breathalyzer test results are admissible in per se prosecutions, without the necessity of retrograde extrapolation evidence, ... where the tests have been conducted within a reasonable time of the operation of a motor vehicle.”  Colturi held that "the passage of up to three hours between testing and operation is a reasonable time for this purpose." Id. at 816-817.  Later, the Appeals Court held in Commonwealth v. Filoma, 79 Mass.App.Ct. 16, 20 (2011), that the Commonwealth could establish guilt under the per se theory by "introduc[ing] evidence of a breathalyzer reading of .08 percent or greater and request[ing] the judge to instruct the jury that, if they believed the accuracy of that measure, it conclusively established operation under the influence."   Also in Commonwealth v. Rumery, 78 Mass.App.Ct. 685, 688 (2011), the Appeals Court held that "the properly admitted reading of 0.08, by itself, permitted the jury to conclude that the defendant had a blood alcohol level that was above the legal limit."


“Under these decisions, then, it is settled law that a breathalyzer test result showing a blood alcohol level of .08 or above, administered within a reasonable time of the operation of a motor vehicle, as that phrase was defined in Colturi, is sufficient to prove a defendant guilty beyond a reasonable doubt of violating G.L. c. 90, § 24(1) (a) (1), under the "per se" theory described above.

The Court vacated the order granting the defendant's rule 25(b) (2) motion, reinstated the jury's verdict, and remanded the case for further proceedings.