Recently the Appeals court ruled on the importance of “per se theory” instruction and of an “impairment theory” expert opinion in COMMONWEALTH vs. FILOMA 79 Mass. App. Ct. 16 (2011). The case shows how critical the expert testimony, as well as jury instructions can be during the trial.
The court in ruling stated “At a criminal trial, the Commonwealth’s failure to submit proper proof of the element of operating under the influence of intoxicating liquor required reversal of the defendant’s convictions of two counts charging operation of a motor vehicle under the influence of intoxicating liquor and causing serious bodily harm, in violation of G. L. c. 90, § 24L(2).
Alcohol-related offenses. As the judge accurately instructed the jury, a verdict of guilt on the charges of operating under the influence of intoxicating liquor and causing serious bodily injury, G. L. c. 90, § 24L(2), required the Commonwealth to prove beyond a reasonable doubt that (1) the defendant had operated a motor vehicle, (2) upon a public way or place to which members of the public had access as invitees or licensees, (3) while he was under the influence of intoxicating liquor (the OUI element), (4) so as to cause serious bodily injury to a victim. Compare Commonwealth v. Flanagan, 76 Mass. App. Ct. 456 , 463 (2010) (G. L. c. 90, § 24L). The Commonwealth could establish the OUI element by either of two methods. By the “per se” method, it could introduce evidence of a breathalyzer reading of .08 percent or greater and request the judge to instruct the jury that, if they believed the accuracy of that measure, it conclusively established operation under the influence. Alternatively, by the method of proof by impaired operation, the prosecution could introduce percipient evidence of the defendant’s appearance and conduct and a breathalyzer result of .08 percent or greater without a request for an instruction that such a reading, if believed, conclusively established operation under the influence. In the latter instance, however, the prosecution would be required to support the .08 percent result with expert testimony explaining the relationship between that measure and impaired operation. Commonwealth v. Colturi, 448 Mass. 809 , 817-818 (2007). See Commonwealth v. Hubert, 71 Mass. App. Ct. 661 , 662 n.2 (2008), S.C., 453 Mass. 1009 (2009).
In the present case, the Commonwealth did not request an instruction embodying the per se theory. Rather, the prosecutor requested the judge to instruct the jury that the .08 percent measure permitted the jury to draw the reasonable inference that the defendant had been operating under the influence. The Commonwealth had introduced the testimony of an expert witness, a toxicologist. However, his testimony focused primarily upon the process of retrograde extrapolation, a method for estimation of a person’s blood alcohol content at points in time prior to the moment of the breathalyzer test. That expert provided the opinion that the defendant’s readings of .09 at 4:27 A.M. and 4:30 A.M. enabled projections of higher amounts of .10 percent to .14 percent as of 2:15 A.M. and inferably higher amounts two and one-half hours earlier, at the time of the events on Symphony Road.
However, the expert never explained the fundamental connection between the amounts of blood alcohol content and the punishable condition of impairment: the diminished capacity to operate a motor vehicle safely. The omission of that explanatory connection, in the words of the Colturi decision, left the jury “to guess at [the] meaning” of the breathalyzer measurements. 448 Mass. at 818. Consequently, in the absence of the per se theory instruction and of an impairment theory expert opinion, proof of the elements of operating under the influence was deficient.
Deficient proof of the OUI element requires reversal of the convictions of the alcohol-related crimes charged as a result of the serious bodily injuries to Jason Stackiewicz and Joshua Bersey.”
Attorney Ronald A. Sellon