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Commonwealth v. Dolliver8/13/2001
quor at the time. Evidence of such a test is before you in this case. The law says if the percentage of alcohol by weight in the defendant's blood was .08 percent or more, .08, .09, .10, etcetera, .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor."
Dolliver claims that the judge also should have charged the jury as follows:
"If you believe that the test may have been inaccurate (because it was scientifically invalid) (or) (because it was not properly and competently administered) then you should disregard the test results altogether and determine whether the defendant is guilty or not guilty based on the other evidence presented in this case." Model Jury Instructions for Use in the District Court § 5.10, at 4 (1995).
Dolliver claims that he was entitled to the foregoing additional instruction because, during cross-examination of Officer Doherty, who administered the test, and also of Lieutenant Leporati, who maintained the machine, defense counsel "effectively challenged the accuracy of the breathalyzer machine." Dolliver further claims that the judge's failure to give the requested additional instruction impermissibly "shifted to the defendant the burden of proof on the question whether he was under the influence of liquor."
The record in this case fails to support Dolliver's assertions. Although defense counsel brought out during her cross-examination of Lieutenant Leporati that a simulator test performed at the time Dolliver was tested produced a reading of .14, rather than .15, we have previously noted that such a reading is within the zone of tolerance. See Commonwealth v. Kelley, 39 Mass. App. Ct. 448, 451 (1995). See also Commonwealth v. Cochran, 25 Mass. App. Ct. 260, 261-263 (1988); 501 Code Mass. Regs. § 2.56(2) (1996). The reading therefore confirmed, rather than refuted, that the machine was registering accurately at the time Dolliver was tested.
In any event, we do not agree that the judge's failure to give the requested supplemental instruction impermissibly shifted to Dolliver the burden of proof on the question whether he was under the influence of liquor, or otherwise gave rise to a substantial risk of a miscarriage of justice, even assuming its omission was error. To the contrary, as noted above, the judge emphasized to the jury that the burden of proof remained at all times with the Commonwealth. In light of the instructions, there is no possibility that the jury would have understood that they were bound to accept the results of the breathalyzer machine, or that Dolliver bore any burden of proof that the machine was unreliable.
Dolliver's reliance on our decision in Commonwealth v. Williams, 19 Mass. App. Ct. 915 (1984), is misplaced. In that case, the jury were instructed that, as a result of evidence that the defendant had scored .12 on his breathalyzer test, " here shall be an inference that defendant was under the influence of intoxicating liquor." Id. at 916 (emphasis original). Here, by contrast, the jury were told only that the "test may assist you" in that regard and "if the percentage of alcohol by weight in the defendant's blood was .08 percent or more . . . from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor" (emphases added). The judge's instructions did not mandate any inference or otherwise shift the burden of proof to the defendant.
Judgment affirmed.
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