 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Commonwelath v. Senior3/13/2001
Plymouth.
January 8, 2001.
Evidence, Intoxication, Blood alcohol test, Scientific test. Intoxication. Agency, What constitutes. Attorney at Law, Attorney-client relationship. Privileged Communication. Constitutional Law, Waiver of constitutional rights.
Indictment found and returned in the Superior Court Department on June 16, 1997.
Pretrial motions to dismiss and to suppress evidence were heard by Richard J. Chin, J., and the case was tried before Charles F. Barrett, J.
The Supreme Judicial Court granted an application for direct appellate review.
The defendant, Robert B. Senior, was convicted of vehicular homicide and sentenced to from three to five years in prison. We granted his application for direct appellate review. On appeal, the defendant claims the motion judge erred in admitting the results of the defendant's blood alcohol test and that the trial judge erred in allowing the Commonwealth's expert to employ retrograde extrapolation to determine the defendant's blood alcohol content at the time of the collision and in denying his motion in limine and permitting the prosecutor to comment on the defendant's post-Miranda silence. He contends that these errors warrant dismissal of the indictment. We disagree and affirm the conviction.
1. Background.
On April 5, 1997, the defendant met friends at a restaurant and lounge, where he consumed four to six beers in a two-hour period. At approximately 6:50 P.M., after leaving the restaurant, the defendant drove down Route 44 in excess of the speed limit and crashed into the victim's car, which had apparently stalled on the roadway. The victim was pronounced dead, of multiple injuries sustained in the collision, at a hospital.
Officers Kevin Furtado and Stephen Viella of the Plymouth police department arrived at the scene of the collision, and both spoke with the defendant. Officer Viella testified that the defendant smelled of alcohol, had slurred speech, and was unsteady on his feet. On this basis, he determined that the defendant was intoxicated. Shortly thereafter, Officer Furtado read the defendant the Miranda warnings, which the defendant indicated he understood. Thereafter, in response to Officer Furtado's questions, the defendant admitted that he had "a couple of beers" and did not see the victim's car before he struck it. When the officer asked him where he had been drinking prior to these events, the defendant did not respond. This was the only question he failed to answer and, thereafter, he cooperated with Furtado by retrieving his license and registration and answering other questions relating to the accident. After the defendant performed poorly on three field sobriety tests, Officer Furtado also concluded that the defendant was intoxicated and placed him under arrest. The defendant was taken to the police station.
Later that night, the defendant's attorney went to the police station and secured the defendant's release. They eventually went to a hospital. Sometime after 11 P.M., hospital personnel performed a blood alcohol test on the defendant, at the attorney's request. The attorney testified at a pretrial hearing that he had this test conducted because he thought it would be a "useful defense tool," if it reflected the defendant's sobriety. The results of the test indicated that the defendant's blood alcohol level was .091.
At trial, the Commonwealth's expert witness, Dr. Guy Vallaro, employing retrograde extrapolation with respect to the results of the blood alcohol content test, estimated that the defendant's blood alcohol level at the time of the collision was between .099 and .148. Additional facts
Page 1 2 3 4 5 6 Massachusetts DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|