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Commonwealth v. Dolliver8/13/2001
Middlesex.
June 11, 2001.
Motor Vehicle, Operating under the influence. Jury and Jurors. Practice, Criminal , Challenge to jurors, Instructions to jury, Presumptions and burden of proof. Evidence, Breathalyzer test.
Complaint received and sworn to in the Framingham Division of the District Court Department on December 15, 1997. The case was tried before Robert V. Greco, J.
After a six-person jury trial in District Court, Richard Dolliver was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of G. L. c. 90, § 24. On appeal, he claims that (1) the prosecutor's peremptory challenge of the only male juror deprived him of his right under art. 12 of the Massachusetts Declaration of Rights to be tried by an impartial jury and (2) the judge improperly failed to instruct the jury they could disregard the results of the defendant's breathalyzer test if they believed the test may have been inaccurate because it was scientifically invalid or not properly and competently administered. We affirm the conviction.
The evidence.
In the light most favorable to the Commonwealth, the evidence was as follows. Just after midnight on the morning of December 14, 1997, Officer Michael Doherty of the Framingham police department was dispatched to the scene of an accident near the Marlborough town line. When Doherty arrived at the scene he found a Dodge Daytona car on top of a rock a few feet off the side of the road opposite from the car's direction of travel, with no one in the car. A second officer, Jose Torres, searching nearby roads for the driver with the spotlights of his marked cruiser, eventually sighted the defendant, Richard Dolliver, crouched down behind a tree in the woods. Initially unresponsive to the officer's calls, Dolliver finally got up and staggered unsteadily toward Torres when the latter walked to within three feet.
Dolliver told Torres that he had just been in an accident and was going home to call a wrecker to remove his car. Dolliver had a smell of alcohol on his breath, his speech was slurred, and he had red, glassy eyes. Dolliver further confirmed that he was the driver of the Dodge Daytona involved in the accident. In response to questions about his alcohol consumption, Dolliver stated that he had drunk just one beer.
Dolliver thereafter flunked certain field sobriety tests. Doherty accordingly placed Dolliver under arrest and took him to the Framingham police station. There Dolliver was offered, and accepted, an opportunity to take a breathalyzer test.
Officer Doherty administered the test to Dolliver at about 2:00 A.M. Officer Doherty, a certified operator of the "Intoxilyzer 5000" breathalyzer machine used in the test, followed written procedures provided by the Office of Alcohol and Testing pursuant to G. L. c. 90, § 24K. Dolliver twice registered a blood alcohol level of .09, above the level of .08 at which a permissible inference may be drawn that the person tested is under the influence of alcohol. See G. L. c. 90, § 24(1)(e).
In addition to Officers Torres and Doherty, who testified to the events just recited, Officer Michael McCloy of the Framingham police department testified that he had stopped the defendant twice for speeding earlier in the evening. Additionally, Lieutenant Michael Leporati of the Framingham police department testified that, as the officer in charge of the machine used to conduct the breathalyzer test, he had ensured that the machine had been subjected to each of the annual certifications and monthly calibration tests required by law.
1. Allowance of Peremptory Challenge.
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