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Com. v. Abbott12/31/2003
The defendant was convicted of motor vehicle homicide while operating a motor vehicle under the influence of intoxicating liquor and negligently. [FN1]
FN1. The defendant was also convicted of motor vehicle homicide while operating under the influence of intoxicating liquor and motor vehicle homicide while operating negligently. These indictments were dismissed. An indictment for operating under the influence of intoxicating liquor, second
offense, was placed on file without a change of plea.
On appeal, the defendant claims that the judge committed error when he allowed the Commonwealth to introduce in evidence, test results of blood samples taken from the defendant. The hospital discarded the blood samples before the defendant could conduct independent testing.
Facts. The jury could find the following facts. On September 29, 2000, at about 10:00 P.M., the defendant was operating a motor vehicle in Holbrook when he struck a vehicle in which there were three occupants. One of the passengers in that vehicle was ejected and died from the injuries he sustained. The posted speed limit at the place of the accident was thirty-five miles per hour. An expert testified that the defendant was traveling at sixty-two or sixty-three miles per hour.
The accident happened near the home of a practical nurse. She went out to help the defendant who was bleeding from the chin. The defendant told her he "only had a few beers, just a few drinks." In her opinion, the defendant was intoxicated.
A paramedic also treated the defendant and the defendant told him that he consumed three or four Kahlua Sombreros. The paramedics noticed a very strong odor of alcohol coming from the defendant. The defendant's behavior alternated from being belligerent and combative to being "giddy" and having "almost a laughing type [of] demeanor ." The firefighter paramedics on the scene all formed the opinion that the defendant was intoxicated.
A bartender testified that she served the defendant two beers, and a co-worker who was with the defendant testified that before the accident, the defendant had drunk some beers.
The defendant was taken to a hospital. The nurse at the hospital was of the opinion that the defendant was intoxicated because of the odor of alcohol, his inappropriate behavior, his foul language, his inability to follow orders, and his inability to focus his eyes on the nurse as she moved around the room. A police officer who spoke to the defendant in the emergency room also was of the opinion that the defendant was intoxicated.
The emergency room doctor at the hospital also testified that in his opinion, the defendant's behavior was consistent with alcohol intoxication. He ordered blood samples to be taken from the defendant for diagnostic reasons. The results showed that the defendant's blood alcohol level was 199 milligrams per deciliter, which corresponds in statutory terms to a blood alcohol level of 0.17.
Destruction of the blood samples. The hospital protocol dictates that blood samples be retained for seven days, then destroyed.
On September 29, 2000, shortly after the accident, the Commonwealth, through a Grand Jury subpoena, sought to have the hospital produce the blood samples. The Commonwealth was informed that the hospital would not comply with the request without a court order. On October 6, 2000, the Commonwealth obtained the required order and delivered it to the hospital. The order, however, did not get processed in time and the samples were discarded on October 7, 2000. The defendant was therefore unable to test the blood samples.
***2 The defendant filed a motion in limine requesting that the results of the blood alcohol test not be allowed in evidence because, among other things, the hospital destroyed the blood samples
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