Com. v. Flaherty9/7/2004
A Superior Court jury convicted the defendant of operating under the influence, fourth offense, *777 G.L. c. 90, § 24. [FN1] The **400 main issue on appeal is the propriety of using a New Hampshire "conviction" as one of the prior offenses. We hold that it was proper.
FN1. He was found not guilty of refusing to submit to a police officer, G.L. c. 90, § 25. After the operating under the influence conviction, he waived a jury trial, and was found guilty of being a four-time offender.
Facts. On November 24, 2001, at 1:20 A.M., Newburyport Police Officer Kevin Martin observed the defendant, Thomas Flaherty, driving sixty miles per hour in a thirty-five mile per hour zone and swerving erratically across the road's center lane line. Martin followed the defendant's vehicle for approximately one quarter of a mile before activating the cruiser's lights and siren. Despite the flashing lights and siren, the defendant did not stop the car he was driving until he reached his home, approximately three quarters of a mile from the exit ramp where Martin first observed the defendant's speeding vehicle. Martin then administered field sobriety tests to the defendant, which he failed.
After booking, the defendant was placed in a holding cell, whereupon he complained of chest pains, necessitating a trip to the hospital, where he was treated and released.
He appeals, claiming that (1) a prior New Hampshire offense resulted in neither a conviction nor a court assignment for treatment, and thus cannot serve as a predicate offense under G.L. c. 90, § 24(1)(a )(1); (2) the prosecutor erroneously used a police report written by a nontestifying booking officer; and (3) the hospital records from the night of his arrest should have been admitted in evidence, as they were exculpatory in that they did not contain any reference to his being intoxicated.
1. The out-of-state charge. Under Massachusetts law, the defendant is guilty as a fourth time offender "[i]f the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the commission of the offense for which he has been convicted...." G.L. c. 90, § 24(1)(a )(1), as appearing in St.1999, c. 127, § 108, 109.
The prior charge at issue occurred on December 12, 1998, in *778 Rochester, New Hampshire. [FN2] On January 4, 1999, the defendant pleaded guilty to driving under the influence of liquor, in violation of N.H.Rev.Stat. Ann. § 265:82. [FN3] Pursuant to N.H.Rev.Stat. Ann. § 265:82-b, I(a), "[a]ny person who is convicted of any offense under ... RSA 265:82 shall be: (1) Guilty of a violation ...." (emphasis added).
FN2. Two prior Massachusetts offenses, which occurred on May 14, 1992, and October 1, 1994, are not at issue.
FN3. N.H.Rev.Stat. Ann. § 265:82 provides, in part, "No person shall drive or attempt to drive a vehicle upon any way: (a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; or (b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more."
Further, under New Hampshire practice, "[u]pon conviction of a violation of RSA 265:79, 82 or 82-a, the court shall report to the department [of motor vehicles] and shall immediately revoke the license or driving privilege of the person so convicted...." N.H.Rev.Stat. Ann. § 263:65. In order to have the license reinstated, one must furnish "proof of successful completion of an impaired driver intervention program" to the motor vehicle **401 registry. N.H.Rev.Stat. Ann.
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