Commonwealth v. Costa (Lawyers Weekly No. 11-190-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-911 Appeals Court COMMONWEALTH vs. THOMAS J. COSTA. No. 14-P-911. Bristol. May 8, 2015. – December 17, 2015. Present: Green, Milkey, & Maldonado, JJ. Motor Vehicle, Operating under the influence. Evidence, Breathalyzer test. Practice, Criminal, Reopening of evidence, Recalling witness, Judicial discretion, Failure to make objection, Failure to object. Complaint received and sworn to in the Taunton Division of the District Court Department on July 23, 2012. The case was heard by Thomas L. Finigan, J. Justin D. Cohen for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth. MALDONADO, J. After a bench trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol, G. L. c. 90, § 24(1)(a)(1). On appeal, he asserts that (1) the breathalyzer test results were inadmissible because the Commonwealth did not follow certain regulations, (2) the judge erred by reopening the case to take additional evidence on the breathalyzer test after both parties had rested, and (3) the evidence was insufficient to support the conviction. We affirm. Inadmissibility of the breathalyzer. Regulations promulgated by the Executive Office of Public Safety govern how alcohol breath tests are to be administered and how breathalyzers should be maintained. See G. L. c. 90, § 24K. “For a breathalyzer test result to be valid and admissible in evidence, the Commonwealth must demonstrate compliance with those regulations that ‘go to the accuracy of the [breath testing] device or manner in which the [breathalyzer] test was performed.’” Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 411 (2014), quoting from Commonwealth v. Kelley, 39 Mass. App. Ct. 448, 453 (1995). The regulations require “periodic testing” to check the breathalyzer’s function. “[P]rior to the admission of a breathalyzer result, the Commonwealth must prove . . . compliance with[] the requirements of a periodic testing program.” Commonwealth v. Barbeau, 411 Mass. 782, 786 (1992). The periodic tests must be done at a minimum “whenever the calibration standard [here, cylinders of gas, see 501 Code Mass. Regs. § 2.11(3) (2010)] is replaced and after the breath test device is certified by OAT [the office of alcohol testing].”[1],[2] 501 Code Mass. Regs. § 2.12(2) (2010). Each periodic test consists of “five calibration standard analysis tests.” 501 Code Mass. Regs. § 2.12(1) (2010). A calibration standard analysis test is a reading by the breathalyzer […]