Appeals Court (March 7, 2006)

The breath test result is admissible even though the officer failed to wait fifteen minutes before beginning the test.

It was not error for the prosecutor to comment on the breath test result without expert witness testimony.

The defendant appealed his conviction of Operating Under the Influence of Alcohol on two grounds: 1) his breath test was inadmissible because of an initial invalid test; and 2) the prosecutor's comments during closing argument (that an .09 reading is inconsistent with the defendant's story of consuming only three beers) were improper without expert testimony.

Invalid Test:

After arrest the defendant consented to a breath test. The intoxilizer 5000 must warm up for a period of fifteen minutes so the simulator solution, which calibrates the instrument, reaches the appropriate temperature. A light on the instrument indicates when the instrument is sufficiently warmed up and ready to use. The officer did not allow the appropriate amount of time before administering the first test and a lower than acceptable calibration reading resulted (.13). After consulting with another officer and realizing the error, a valid test was given and the defendant blew a .09. The defendant argued the test should be invalid as the first reading decertified the machine (501 Code of Massachusetts Regulations 2.42).

Upon review, the Appeals Court held the test was admissible and noted failure of the equipment is different than failure of the operator as in this case.

Closing Argument:

During closing argument the prosecutor remarked:

"[A}fter you hear what the law is, you will recognize what the significance of a .09 is, and that's important because it is entirely . . . inconsistent with what the defendant says he consumed for alcohol that evening. If you're to credit his testimony …he tells the officer he consumed three beers two to three hours before he was stopped, … it's inconsistent with the fact that the officer still smelled a moderate odor of alcohol on his breath, his eyes were still bloodshot and glassy, and he blew a .09 on a breathalyzer when he was stopped. That is inconsistent with one who has consumed only two to three beers."

The appeals court upheld the defendant's conviction but commented that "we are not entirely convinced that the statement by the prosecutor did not cross the line into territory that required expert testimony." The court reasoned; however, that this defendant was tried before the per se theory was enacted and at that time the permissible inference language was still in the statute.