Posts tagged "1105814"

Commonwealth v. Dacosta (Lawyers Weekly No. 11-058-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     13‑P‑1249                                       Appeals Court   COMMONWEALTH  vs.  DARCI T. DACOSTA. No. 13‑P‑1249. Worcester.     March 7, 2014.  ‑  May 30, 2014. Present:  Katzmann, Rubin, & Carhart, JJ. Motor Vehicle, Operating under the influence.  Evidence, Blood alcohol test, Breathalyzer test, Intoxication.  Intoxication.   Complaint received and sworn to in the Westborough Division of the District Court Department on July 9, 2012.   The case was tried before Andrew M. D’Angelo, J., and a postverdict motion for a required finding of not guilty was heard by him.     Jane A. Sullivan, Assistant District Attorney, for the Commonwealth. Darla J. Mondou for the defendant.     RUBIN, J.  The Commonwealth appeals from a trial court judge’s allowance of defendant Darci T. Dacosta’s motion for a required finding of not guilty following the defendant’s conviction at a jury trial of operating a motor vehicle with a blood alcohol level of .08 percent or greater in violation of G. L. c. 90, § 24(1)(a)(1).  See Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995) (rule 25[b][2]).   The defendant was arrested after the pickup truck he was driving was pulled over for an inspection sticker violation.  The officer who pulled the truck over observed that the defendant’s speech was slurred, his eyes were red and glassy, and his breath smelled moderately of alcohol.  The officer conducted two field sobriety tests and concluded that the defendant had failed both.  The officer placed the defendant under arrest and brought him to the Northborough police station.  At the station, the defendant consented to a breathalyzer test.  Two tests were administered, each of which showed his blood alcohol level to be .09 percent.  The first reading was taken approximately fifty minutes after the defendant was stopped by the police, and the second was taken approximately fifty-five minutes after the stop. The case was submitted to the jury on both the theory of operating a motor vehicle while under the influence of intoxicating liquor, and the theory of a “per se” violation of the statute through the operation of a motor vehicle with a blood alcohol level of .08 percent or more.  See G. L. c. 90, § 24(1)(a)(1), as amended through St. 2003, c. 28, § 1 (providing for punishment of any person who “upon any [public] way . . ., operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight […]

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Posted by Massachusetts Legal Resources - May 30, 2014 at 7:01 pm

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