Judith Ensey.
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Supreme Court
No. 2002-236-C.A.
(P3/98-2328A)
State
:
v.
:
Judith Ensey.
:
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 2223258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2002-236-C.A.
(P3/98-2328A)
State
:
v.
:
Judith Ensey.
:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
OPINION
Robinson, Justice.
At the conclusion of a nonjury trial in the District Court, the
defendant, Judith Ensey, was found guilty of driving under the influence (DUI) in contravention
of G.L. 1956 § 31-27-2 as amended by P.L. 1994, ch. 70, art. 35, § 7.1 Defendant Ensey then
appealed to the Superior Court, where the case was tried on a de novo basis before a jury. The
jury convicted her on the DUI charge, and the trial justice in the Superior Court sentenced her to
serve a one-year term of imprisonment, which sentence was suspended with probation. The
defendant was also assessed a fine and court costs, and her license to drive was suspended for six
months. In addition, she was ordered to perform fifty hours of community service and to attend
“alcohol counseling” and “DWI school.”
1
The defendant had the right to a jury trial in the Superior Court in the first instance, but
she chose to give up that right by signing a waiver form consenting to a nonjury trial in the
District Court. Upon being found guilty by the District Court judge, she exercised her right to a
de novo trial in the Superior Court.
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The defendant has appealed to this Court from her Superior Court conviction.2 She
contends that the trial justice erred by admitting into evidence the results of a breathalyzer test,
because (she alleges) the prosecution failed to present sufficient evidence that the test was
performed in accordance with the criteria set forth in § 31-27-2(c). The defendant further
contends that the trial justice’s jury instructions concerning the breathalyzer machine in effect
constituted a directed verdict of guilt and also constituted an improper comment on the evidence
that impermissibly shifted the burden of proof from the prosecution to the defense. In our
judgment, the Superior Court trial was not tainted with reversible error, and we therefore affirm
the judgment of conviction.
Facts and Travel3
At defendant’s jury trial, John Carroll4 of the Central Falls Police Department testified
that, at the time of defendant’s arrest in 1998, he was working as a uniformed patrol officer
assigned to the midnight-to-8 a.m. shift on the east side of the City of Central Falls. Officer
Carroll testified that one of his duties as a patrol officer was to ensure that patrons of the local
bars and restaurants would leave those establishments at closing time (1 a.m.) in a timely
manner.
2
The defendant filed her notice of appeal on February 14, 2002, five days before the
judgment of conviction was actually entered. We do not regard defendant’s premature appeal to
be fatal, because we now have jurisdiction over the case. We shall treat the appeal as if it had
been timely filed after judgment was entered. See Russell v. Kalian, 414 A.2d 462, 464 (R.I.
1980) (“In the interests of justice and to avoid undue hardship, we do not regard this minor
procedural defect as fatal.”).
3
Additional facts will be supplied in the “Analysis” portion of this opinion as may be
necessary to clarify our discussion of the various legal contentions.
4
John Carroll now holds the rank of detective in the Central Falls Police Department. At
the time of defendant’s arrest, however, he was a patrol officer, and in this opinion we shall refer
to him as Officer Carroll.
-2-
Shortly after 1 a.m. on May 9, 1998, while Officer Carroll was in the process of
performing this duty, he was standing in the parking/breakdown lane of a street in Central Falls
outside a restaurant called Benjamin’s Bar & Grille. Officer Carroll testified that, while he was
speaking with an unidentified male at that location, his attention was diverted from his
conversation when he observed a vehicle, whose registration plate was LQ 512, traveling
southbound on Broad Street at a rate of speed in excess of the speed limit of twenty-five miles an
hour. Officer Carroll testified that the vehicle then swerved towards the parking/breakdown lane
in the direction of two vehicles that were parked directly in front of Benjamin’s Bar & Grille.
The driver of the speeding vehicle avoided the parked vehicles by swerving back towards the
travel lane, but the driver then swerved back towards Officer Carroll, who had to jump “onto the
sidewalk to avoid being hit.”
While he was on the sidewalk, Officer Carroll observed his shift commander, Sergeant
Bruce J. Ogni, driving by.5 Officer Carroll testified that he contacted Sergeant Ogni by portable
radio and told him that he had almost been struck by a vehicle whose registration plate was LQ
512. He requested that Sergeant Ogni pull the vehicle over.
Sergeant Ogni testified that he saw the subject vehicle within seconds after receiving
Officer Carroll’s request, and he immediately directed the driver of the vehicle to pull over to the
side of the road. Sergeant Ogni further testified that Officer Carroll arrived at the scene “a
second after” and that, while he (Sergeant Ogni) ensured that there were no traffic problems,
Officer Carroll approached the driver of the vehicle.
Officer Carroll testified as follows concerning his observations at that point:
5
Bruce J. Ogni now holds the rank of lieutenant in the Central Falls Police Department.
At the time of defendant’s arrest, however, he was a sergeant, and in this opinion we shall refer
to him as Sergeant Ogni.
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“As I approached the driver’s side, the window was already
down. I came to rest upon the doorjam area which is our standard
tactic. At that point, I started a conversation with the operator and
I immediately noted a very overwhelming smell of alcohol
beverage coming from the person and the vehicle.”
Officer Carroll identified defendant Judith Ensey to the jury as being the driver of the
vehicle. He testified that, as he was speaking with her, “she was mumbling.” He also testified
that he noticed that “her face was very flushed, very red.”
He then testified that, while
complying with his request that she exit the vehicle, defendant “almost fell into the lane of
travel.” According to Officer Carroll, defendant Ensey “then had to grab the door, the operator’s
side door, to steady herself.” Officer Carroll said that he “ushered her to the sidewalk area” and
that he then “asked her to complete a set of field sobriety tests due to the fact that [he] had
suspicions about her being under the influence.” Those field sobriety tests were: the horizontal
gaze nystagmus test, the “finger-to-nose” test, and the Rhomburg balance test.
Officer Carroll testified that, rather than touching her nose during the “finger-to-nose”
test, defendant touched her left eye with her left finger and the middle of her forehead with her
right finger.
Officer Carroll further testified that he then explained the Rhomburg balance test to
defendant, telling her that she must stand with her feet together and hands down by her side,
close her eyes, and lean her head back for thirty seconds. Officer Carroll also testified that, when
defendant attempted to perform that test, she “was unstable * * * at that point and fell backwards
into a chain-linked fence that was directly behind her.”
After he saw defendant fall into the fence, Officer Carroll became concerned for her
safety, and he immediately halted the field sobriety testing. He arrested defendant Ensey for
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suspicion of driving under the influence of liquor or drugs. Officer Carroll testified that he
advised defendant of her rights and then transported her to the police station for processing.6
At the Central Falls police station, Officer Carroll read defendant the words printed on a
form entitled “RIGHTS FOR USE AT STATION.”7
The defendant waived her rights by
initialing each paragraph on the form and by signing the bottom of the form to acknowledge that
she had been read her rights. Her signature also indicated her agreement to submit to a chemical
test.8 The defendant did not seek to take advantage of her right to make a telephone call.
Officer Carroll testified that, employing an “Intoxilyzer 5000” machine, he administered
a breathalyzer test to defendant in order to determine her blood-alcohol concentration (BAC).9
He further testified that the breathalyzer test consisted of two phases separated by a minimum of
thirty minutes; he added that, before administering the test to defendant, he observed her for
6
Officer Carroll testified that he read defendant certain statements contained on a
laminated card. (See generally In re Kean, 520 A.2d 1271, 1272 n.1 (R.I. 1987).) The
statements on the card included the standard Miranda warnings as well as the following
statement about the right to be examined by a physician of one’s choice:
“You have the right to be examined at your own expense
immediately by a physician selected by you. You will be afforded
a reasonable opportunity to exercise this right.”
7
The “RIGHTS FOR USE AT STATION” form contained language advising defendant
that she was suspected of having driven under the influence of intoxicating liquor and/or drugs
and requesting that she submit to a chemical test. The form also incorporated Miranda warnings
and set forth defendant’s rights and the statutory penalties for refusal to submit to a chemical
test.
8
The defendant did not object to, nor does she challenge on appeal, the admission into
evidence of the initialed and signed “RIGHTS FOR USE AT STATION” form, in which she
agreed to submit to a chemical test.
9
In State v. Cluley, 808 A.2d 1098, 1101n.1 (R.I. 2002), we explained the scientific
underpinning of blood-alcohol concentration (BAC) tests by quoting at length from a discussion
of the subject in a scholarly treatise.
-5-
fifteen minutes to ensure that she did not ingest anything or act in any other way that could have
had an adverse effect on the results.
Officer Carroll testified that he administered the first phase of the breathalyzer test at
1:44 a.m. The first phase resulted in a BAC reading of 0.161 percent.
Officer Carroll
administered the second phase of the breathalyzer test approximately thirty four minutes later.
The second phase of the breathalyzer test resulted in a BAC reading of 0.145 percent.10
Officer Carroll proceeded to issue to defendant a written notification of the alleged
offense (a “ticket”), charging her with the offense of driving under the influence of alcohol or
drugs in violation of § 31-27-2.11 It is from her conviction by the Superior Court jury on that
charge that defendant now appeals.
The defendant raises two issues on appeal. She first contends that the results of the
breathalyzer test were inadmissible because the prosecution failed to provide adequate evidence
that the solution used to test the accuracy of the “Intoxilyzer 5000” breathalyzer machine was
properly constituted; and, further developing that contention, defendant argues that, because the
prosecution had allegedly failed to lay the proper evidentiary foundation, the trial justice erred in
admitting the breathalyzer test results. The defendant’s second appellate contention deals with
10
At the time of defendant’s arrest, a person could be found guilty of driving under the
influence (DUI) of liquor or drugs if his or her BAC was one-tenth of one percent (0.10%) or
more by weight as shown by a chemical analysis of a sample of his or her blood, breath, or urine.
G.L. 1956 § 31-27-2(b)(1). That provision has since been amended so that a person may be
found guilty of a DUI offense if his or her BAC reading is eight one-hundredths of one percent
(0.08%) or more by weight.
11
Section 31-27-2(a), which has since been amended, provided at the pertinent time:
“Whoever operates or otherwise drives any vehicle in the state
while under the influence of any intoxicating liquor, drugs,
toluene, or any controlled substance as defined in chapter 28 of
title 21, or any combination thereof, shall be guilty of a
misdemeanor and shall be punished as provided in subsection (d)
of this section.”
-6-
the instructions to the jury in her case. She argues that the trial justice improperly instructed the
jury about the breathalyzer test results and that those instructions in effect directed a verdict in
favor of the prosecution and impermissibly shifted the burden of proof from the prosecution to
the defense.
Analysis
I
The Admissibility of the Breathalyzer Test Results.
A.
General Principles
At the time defendant was arrested, § 31-27-2(b)(1) provided in pertinent part:
“Any person charged under subsection (a) of this section
whose blood alcohol concentration is one-tenth of one percent
(.1%) or more by weight as shown by a chemical analysis of a
blood, breath, or urine sample shall be guilty of violating
subsection (a) of this section. This provision shall not preclude a
conviction based on other admissible evidence. Proof of guilt
under this section may also be based on evidence that the person
charged was under the influence of intoxicating liquor * * * to a
degree which rendered such person incapable of safely operating a
vehicle.”
In State v. Lusi, 625 A.2d 1350 (R.I. 1993), we specifically commented upon the
importance of the chemical analysis provisions of § 31-27-2(b) as a means of assisting law
enforcement in its combat against drunk driving. We stated in that case: “With the enactment of
§ 31-27-2, as amended by P.L.1983, ch. 227, § 1 [subsection (b)(1)], the Legislature expressed a
clear intent to rely on breathalyzer-test results whenever possible.” Lusi, 625 A.2d at 1354.
Several years earlier, in the case of State v. Lussier, 511 A.2d 958 (R.I. 1986), we had
similarly addressed the purpose of the statutory focus on blood-alcohol concentration. We
stated:
-7-
“The single, decisive issue is whether a motor vehicle is being
operated by a driver whose blood-alcohol concentration equals or
exceeds one-tenth of one percent. Once the record indicates onetenth of one percent or more, the penal consequences will apply
without regard to how the alcohol has affected the individual
personally. The purpose of the statute is not to relieve the state of
its burden to prove defendants guilty beyond a reasonable doubt or
to shift the burden to the defendant. It simply removes the
necessity of providing an expert at each trial to testify about the
effect of that percentage of alcohol upon the defendant’s ability to
drive.” Id. at 960.12
Before the results of a chemical analysis may be admitted, however, the prosecution must
satisfy the foundational requirements that are set forth in § 31-27-2(c).13
12
Many other
In our opinion in State v. Lusi, 625 A.2d 1350, 1354 (R.I. 1993), we characterized the
language in Lussier that is quoted in the text as being a recognition of “the validity of the
breathalyzer test as a reliable, objective method of proof to establish guilt and [as also being an
upholding of] the state’s right to rely primarily on the results of that test in prosecuting a
defendant under § 31-27-2.”
13
At the pertinent time § 31-27-2(c) provided:
“In any criminal prosecution for a violation of subsection
(a) of this section, evidence as to the amount of intoxicating liquor,
* * * in the defendant’s blood at the time alleged as shown by a
chemical analysis of the defendant’s breath, blood, or urine or
other bodily substance shall be admissible and competent,
provided that evidence is presented that the following conditions
have been complied with:
“(1) The defendant has consented to the taking of the test
upon which the analysis is made. Evidence that the defendant had
refused to submit to the test shall not be admissible unless the
defendant elects to testify.
“(2) A true copy of the report of the test result was mailed
within seventy-two (72) hours of the taking of the test to the person
submitting to a breath test.
“(3) Any person submitting to a chemical test of blood,
urine, or other body fluids shall have a true copy of the report of
the test result mailed to him or her within thirty (30) days
following the taking of the test.
“(4) The test was performed according to methods and with
equipment approved by the director of the department of health of
the state of Rhode Island and by an authorized individual.
-8-
jurisdictions have similarly addressed the need for foundational evidence in this context. See,
e.g., State v. Remsburg, 882 P.2d 993, 994 (Idaho Ct. App. 1994) (“Compliance with the
requisite standards and methods for administration of the Intoximeter test is a foundational
prerequisite to having the test results admitted into evidence.”); State v. Bradley, 817 P.2d 1090,
1092 (Idaho Ct. App. 1991) (“Compliance with the requisite standards and methods is a
foundational prerequisite to having the test results admitted into evidence.”); State v. Kudlacek,
426 N.W.2d 289, 292 (Neb. 1988) (“Reasonable proof that the Intoxilyzer machine was accurate
and functioning properly is all that is required as foundation evidence.”); see also People v.
Dailey, 661 N.Y.S.2d 512, 512 (N.Y. Crim. Ct. 1997) (“It is now well settled that the
breathalyzer is a scientifically reliable instrument which, assuming certain conditions are met, is
capable of producing an accurate measurement of a suspect’s blood alcohol content.”).
The determination of whether the prosecution has satisfied the foundational prerequisites
established by § 31-27-2(c) is governed by the provisions of Rule 104(a) of the Rhode Island
Rules of Evidence. Rule 104 provides in pertinent part as follows:
____________________________________
“(5) Equipment used for the conduct of the tests by means
of breath analysis had been tested for accuracy within thirty (30)
days preceding the test by personnel qualified as hereinbefore
provided, and breathalyzer operators shall be qualified and
certified by the department of health within three hundred sixtyfive (365) days of the test.
“(6) The person arrested and charged with operating a
motor vehicle while under the influence of intoxicating liquor, * *
* in violation of subsection (a) of this section was afforded the
opportunity to have an additional chemical test and the officer
arresting or so charging the person informed the person of this
right and afforded him or her a reasonable opportunity to exercise
the same, and a notation to this effect is made in the official
records of the case in the police department. Refusal to permit an
additional chemical test shall render incompetent and inadmissible
in evidence the original report.”
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“(a) Questions of Admissibility Generally. Preliminary
questions concerning * * * the admissibility of evidence shall be
determined by the court subject to the provisions of subdivision
(b). In making its determination it is not bound by the rules of
evidence * * *.
“(b) Relevancy Conditioned on Fact. When the relevancy
of evidence depends upon the fulfillment of a condition of fact, the
court shall admit it upon the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.”
In Bourdon’s, Inc. v. Ecin Industries, Inc., 704 A.2d 747 (R.I. 1997), we emphasized the
discretion accorded to trial justices with respect to evidentiary rulings:
“It is well established that ‘the admissibility of evidence is
within the sound discretion of the trial justice, and this Court will
not interfere with the trial justice’s decision unless a clear abuse of
that discretion is apparent.’ * * * We have held that this standard
is applicable to a trial justice’s determinations with respect to both
the relevancy of proffered evidence and the adequacy of the
foundation laid for its admission.” Id. at 758 (quoting Soares v.
Nationwide Fire Insurance Co., 692 A.2d 701, 701-02 (R.I. 1997)
(mem.); see also Malinowski v. United Parcel Service, Inc., 792
A.2d 50, 53 (R.I. 2002).14
Once a trial justice determines that particular breathalyzer test results are admissible and
those results are admitted, a defendant may offer competent evidence to rebut the inference that
the test result was accurate. See Lusi, 625 A.2d at 1355 (“With respect to the question of
whether a defendant may offer evidence to rebut the inference that a BAC at the time of the
testing was as great at the time of actual driving, * * * once the inference is drawn, competent
14
We have repeatedly stated that evidentiary rulings as to the admissibility of evidence lie
within the sound discretion of the trial justice; and, unless there is a clear and apparent abuse of
discretion, this Court will not disturb the trial justice’s decision. See, e.g., State v. Grayhurst,
852 A.2d 491, 504 (R.I. 2004). Furthermore, absent a clear abuse of discretion, this Court will
not disturb a trial justice’s determination regarding the adequacy of the foundation laid for the
admissibility of evidence. See Bourdon’s, Inc. v. Ecin Industries, Inc., 704 A.2d 747, 758 (R.I.
1997).
- 10 -
evidence may be offered in rebuttal.”); see also State v. Sensing, 843 S.W.2d 412, 416 (Tenn.
1992) (“The breath test result merely creates a rebuttable presumption of intoxication.”).15
With these principles in mind, we must now determine whether the trial justice abused
her discretion in finding that the prosecution laid an adequate foundation for the admission of the
breathalyzer test results.
B.
Certification of the Breathalyzer Machine.
The defendant filed a pretrial motion to suppress the results of the breathalyzer test. The
state responded by filing a motion in limine to determine the admissibility of the breath test
evidence. The trial justice conducted a pretrial hearing and, at the conclusion of that hearing, she
ruled that the results were admissible for purposes of the hearing on the motion in limine.
The defendant asserts that the trial justice erred in admitting the results of the
breathalyzer test because (defendant alleges) the prosecution failed to comply with the
foundational requirements that are set forth in § 31-27-2(c)(4) and § 31-27-2(c)(5).16
Specifically, defendant contends that, in order to establish that the solution used to certify the
“Intoxilyzer 5000” breathalyzer machine was properly constituted, the prosecution was required
to present “testimony from the person who actually prepared the solution” and that the
15
The approach whereby there is a rebuttable presumption of intoxication when the
breathalyzer test yields a result within the statutorily specified zone is consistent with our
holding in State v. Langella 650 A.2d 478 (R.I. 1994). In Langella, we rejected an argument by
the defendant that, once a trial justice initially determines that the police complied with the
foundational requirements of § 31-27-3, the issue of compliance should then be submitted to the
jury. Langella, 650 A.2d at 479; see also State v. Christmas, 40 P.3d 1035, 1038 (N.M. Ct. App.
2002) (holding that, once the prosecution had made a threshold showing that the breathalyzer
machine was functioning properly, “any discrepancy in regard to the validity of Defendant’s
breathalyzer results went to the weight of the evidence to be considered by the jury.”).
16
The pertinent portions of the statute are set forth in note 13, supra.
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prosecution’s failure to present such testimony requires reversal of her conviction and a remand
to the Superior Court for a new trial.
The defendant cites People v. Schneider, 493 N.Y.S.2d 747, 750 (N.Y. Crim. Ct. 1985) to
support her contention about the need for testimony concerning the preparation of the solution
used in the breathalyzer.
That decision by a New York trial court is, however, readily
distinguishable from the case at bar. In Schneider, the New York criminal court found that there
was no foundation establishing that the solution at issue in that case had been properly prepared.
The court specifically noted that “the officer who calibrated the breathalyzer [machine] did not
know who prepared the solution, when it was prepared or how long it had been lying on the shelf
at the Police Laboratory prior to its use.” Id.17 Accordingly, based upon the “unique facts” of
that case, the New York court dismissed the charge of driving while intoxicated. The facts of the
case at bar, however, are not even remotely similar to those in Schneider.
Section 31-27-2(c) provides that “evidence as to the amount of intoxicating liquor * * *
in the defendant’s blood at the time alleged as shown by a chemical analysis of the defendant’s
breath, blood, or urine or other bodily substance shall be admissible and competent, provided
that evidence is presented that the [foundational requirements] have been complied with * * *.”
(Emphasis added.) 18
In the present case, Officer Carroll testified at the pretrial hearing that, at the time of
defendant Ensey’s arrest, he was trained and state-certified in the use of the “Intoxilyzer 5000”
17
In connection with the testimony of the police officer that is quoted in text, the New York
court in Schneider noted that the officer had also “candidly conceded that alcohol tends to
evaporate over a course of time and, if that occurred, it would affect the chemical balance of the
reference solution, thus ultimately affecting the calibration of the breathalyzer.” People v.
Schneider, 493 N.Y.S. 2d 747, 750 (N.Y. Crim. Ct. 1985).
18
The foundational requirements at issue in this case are set forth in §§ 31-27-2(c)(4) and
(5). See supra, note 13.
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breathalyzer machine. He further testified that the particular breathalyzer machine that he used
to administer the test was also certified by the state and that the certification was current. He
then testified that, before he administered the test, he tested the machine to see if it was
functioning properly; he did so by pressing a button on the machine so that it could perform a set
of internal checks. Officer Carroll further testified that he ascertained that the machine was
functioning properly and that, in administering the test to defendant Ensey, he followed all of the
steps set forth in a document called the “Intoxilyzer 5000 Operational Procedure Checklist.”19
He testified that he administered the test to defendant in the following way:
“That evening I inserted a mouthpiece to the Intoxilyzer 5000. I
inserted an Intoxilyzer result card into the machine. The machine
then goes through a series of internal checks. At that point, I told
Ms. Ensey to blow into the machine until the sounding tone stops.
And Ms. Ensey did complete that.”
Officer Carroll identified the printout cards containing the results of both phases of the test, and
the cards were admitted into evidence as full exhibits.
After Officer Carroll concluded his pretrial testimony, a supervisor of the breath analysis
program at the Rhode Island Department of Health, Paula A. Gruttadauria, took the stand to
testify for the prosecution. She testified that it is her duty to: “train police officers in the use of
19
The “Intoxilyzer 5000 Operational Procedure Checklist” requires a police officer to
follow and check off ten steps for phase one of the test and to repeat four of those steps for phase
two of the test. The first three steps of phase one require the officer to observe the suspect for at
least fifteen minutes before administering the test “to prevent oral intake of any material,” to
switch on the machine and to wait for the machine to warm up. Step four instructs the officer to
“Insert a new mouthpiece in end of BREATH TUBE, and push START TEST BUTTON.” Step
five informs the officer that “INSERT CARD will flash on display.” Step six directs the officer
to “Insert EVIDENCE CARD into card slot. Card must be FACE UP.” Step seven instructs the
officer that: “When display reads PLEASE BLOW, have subject blow into mouthpiece until tone
stops.” The next step, step eight, tells the officer that: “After analysis and printing, remove
EVIDENCE CARD. Check for internal standards on evidence card. Step nine directs the officer
to: “Wait 30 MINUTES, after first breath sample.” Finally, step ten instructs the officer to:
“REPEAT STEPS 4 THROUGH 8 of Phase 2.”
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breath analysis equipment and [to] certify breath analysis equipment on a monthly basis.” Ms.
Gruttadauria testified that those duties are prescribed by the Rhode Island Department of
Health’s “rules and regulations pertaining to breath and blood test” and that she was familiar
with those rules and regulations. She further testified that she had received her training and
certification on the use of the “Intoxilyzer 5000” breathalyzer machine at the manufacturer’s
plant in Kentucky and that her certification was current as of the time relevant to this case.
At the pertinent time, Section 7.0 D. 1 of the Rules and Regulations of the Department of
Health provided:
“An authorized agent of the Department will check on the
accuracy of approved breath-testing instruments as prescribed by
law. Instruments must indicate the same alcohol percent as the
standard alcohol solution used in the test.
Records of
recertification dates will be maintained by said Department.”
Section 7.0 D. 3 provided:
“All standard alcohol solutions used for equilibration or
simulation tests will be prepared by forensic scientist or
toxicologists within the Forensic Unit, Division of Laboratories of
the Department.”
The prosecution asked Ms. Gruttadauria “How often are [breathalyzer] machines
certified?” She responded to the question by testifying: “Within 30 days.”20 She then provided
additional testimony as to how the test is actually carried out:
“We use an instrument called a simulator. A simulator is
filled with an alcohol solution. The alcohol solution is a .10
solution. The simulator has to be heated up to a certain
temperature, and when it reaches that temperature, we run the
20
Section 31-27-2(c)(5) requires that:
“Equipment used for the conduct of the tests by means of
breath analysis had been tested for accuracy within thirty (30) days
preceding the test by personnel qualified as hereinbefore provided
* * *.”
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vapor from the simulator solution into the instrument. The
instrument should read .10 with an error factor of .005. So when
we run the test every -- within 30 days. Our results should be
anywhere .095 to .105. Providing that is so, we date the
certification form with the time the test was performed, the
signature of the inspector that did it and the solution that was used
in the simulator.”
Ms. Gruttadauria further testified that she tested and certified the “Intoxilyzer 5000”
breathalyzer machine at the Central Falls Police Station on April 15, 1998, using a solution that
had been prepared in the drug chemistry laboratory within the forensics section in the
Department of Health. 21 Ms. Gruttadauria stated that, at the time the solution was prepared, the
Department of Health’s drug chemistry laboratory employed three people, including the
laboratory’s supervisor. She then testified that: “once the drug chemistry laboratory makes the
solution, it is then tested by the toxicology laboratory again” and that the laboratory personnel
then “provide me with a bottle with all the information on it as far as date prepared * * *.”22 She
added that she then stored the bottle in a locked cabinet in her office.
At the pretrial hearing, the trial justice ruled that the results of the breathalyzer test were
admissible subject to defense counsel’s right to challenge, in a legitimate manner, the evidence
during the trial. The trial justice specifically stated:
“[T]he defense has invited the Court to engage in a good deal of
speculation about the accuracy of the test, the validity of the results
and the validity of the science behind the machine and how it
works. The file does not reflect any discovery requests that would
suggest defendant is legitimately prepared to challenge the
scientific validity of the results or the machine and the science
behind the machine.
21
The serial number on the machine that Ms. Gruttadauria tested and certified matched the
serial number of the machine that Officer Carroll used to administer the breath test to defendant
Ensey.
22
Ms. Gruttadauria also testified that, once a person prepared the solution, the same person
would then mark the bottle with a six-month expiration date.
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“Just understand, counsel, that when we start this trial I’m
going to be very careful to make sure that the jury is not invited to
speculate about those issues. If you wish to challenge, legitimately
challenge the science behind the machine and the scientific validity
of the test results, you may certainly do that. You will do that if
we come to the point and after we come to the point when the
breathalyzer results come into evidence.”
In further response to defense counsel’s assertion that the prosecution had failed to satisfy
the requirements set forth in § 31-27-2(c), the trial justice made the following findings:
“I’ve searched the statute and in particular the subsection.
The conditions for admissibility are plain and simple and do not
require that the State demonstrate more than very basic
foundational requirements. The Defendant suggests that the
Legislative intent must be to prove every item necessary to assure
an accurate result, including the makeup of the simulator solution.
There is nothing in the statute to suggest that that was the
legislative intent. In fact, the statute suggests the opposite. The
statute establishes a very low threshold for admissibility that is
reflecting an intent to facilitate the admission of the test results and
leaving it to the Defendant to attack the reliability of the results
through cross-examination or the presentation of evidence.
Furthermore, the defendant has not provided the Court with any
information tending to rebut the presumption of reliability inherent
to the statutory conditions * * * This Defendant remains free to
cross-examine the State’s witnesses concerning the reliability of
the test results. She also remains free to present evidence
assuming that she has complied with all the discovery
requirements.”
The trial justice then ruled that the results of the breathalyzer test would be admissible as
evidence.23
During the actual trial, defense counsel again objected to the admissibility of the breath
test results, asserting that the jury should also be allowed to determine whether the prosecution
23
Because of the rather unusual procedural posture of this aspect of this case, it may be
helpful to quote the following language from the trial justice’s ruling:
“I’m going to grant what is essentially the State’s Motion in
Limine and deny the Defendant’s Motion in Limine. That Motion
in Limine is folded into the Motion to Suppress.”
- 16 -
had complied with all of the requirements set forth in § 31-27-2(c). The trial justice disagreed
with defense counsel’s contention in that regard and admitted the results of the breathalyzer test.
The defendant did not thereafter introduce any competent evidence to rebut the rebuttable
presumption that the breath test results were accurate.
After reviewing the record in light of the above-outlined principles of law, we conclude
that the evidence presented by the prosecution was sufficient to satisfy the foundational
requirements established by § 31-27-2(c)(4) and (5). The trial justice certainly did not abuse her
discretion in ruling that the prosecution had satisfied those foundational requirements,24 and we
note once again that the defense offered no genuine evidence to rebut the prosecution’s evidence
concerning the foundational requirements.
II
The Jury Instructions
The defendant asserts that the trial justice in the Superior Court improperly instructed the
jury with respect to how it should consider the results of the breathalyzer machine. She contends
that, by giving the challenged instructions, the trial justice in effect directed a verdict in favor of
the state. She further maintains that the instructions constituted an improper comment on the
evidence and thereby impermissibly shifted the burden of proof from the prosecution to the
defense.25 The state counters that the trial justice gave the challenged instructions to “rectify the
24
See Rule 104 of the Rhode Island Rules of Evidence; see also Bourdon’s, Inc., 704 A.2d
at 758.
25
It should be borne in mind that the justices of the Superior Court have the right, pursuant
to an express statutory provision, G.L. 1956 § 8-2-38, to “sum up the evidence * * * to the jury.”
The statute provides as follows:
“In every case, civil and criminal, tried in the superior court
with a jury, the justice presiding shall instruct the jury in the law
relating to the action, and may sum up the evidence therein to the
- 17 -
erroneous and misleading contentions made during defendant’s closing that the State had the
burden of proving the science behind the breath machine before she could be convicted.”
It is noteworthy that during the course of his closing argument defense counsel
challenged the accuracy of the results of the chemical analysis of the samples of defendant’s
breath. He then challenged the jury to consider whether the breathalyzer machine had properly
functioned properly on the night that defendant was arrested when there was no evidence before
the jury to demonstrate how the machine was programmed.26
____________________________________
jury whenever he or she may deem it advisable so to do; but any
material misstatement of the testimony by him or her may be
excepted to by the party aggrieved.” Id.
26
The actual language used by defense counsel in his closing argument should be
considered. Specifically, defense counsel argued:
“The framers of the constitution never intended for anyone to be
convicted on blind faith.
“Well, that’s what the State wants you to do. They want
you to believe that because a machine, a computer, a black box,
comes out with readings over .10, that Judith Ensey must be guilty.
They want you to have blind faith in the machine. They want to
introduce the printouts. The State wants to introduce the printouts
to you. The State wants you to look at them and say ‘See, this
printout, this says guilty.’ That’s your job. You need to be
convinced beyond a reasonable doubt.”
Defense counsel further argued:
“Well, the machine says .10, but the State hasn’t introduced
any evidence as to how this machine works. It sounds like a
complicated machine. We have heard evidence that there is a
computer involved. We’ve heard testified [sic] that the machine
has some kind of self-testing diagnostic system in it, but the police
officer wasn’t able to testify about how that works. Well, what
happens if there’s something wrong with that self-testing
diagnostics?
“Those of you who know about computers -- I’m sure
there’s a few of us. I’m sure we’ve heard the expression ‘Garbage
in, garbage out.’ If you program the computer with the wrong
information, then you’re not going to get the correct results. And,
in this case, the State has to prove their case beyond a reasonable
- 18 -
The trial justice properly instructed the jury concerning the prosecution’s burden as
follows:
“Now, the State may prove that the defendant is guilty of
this crime by one or two of the following methods: The State may
prove that the defendant submitted to a chemical test of her breath
and that the test revealed the defendant’s blood alcohol level to be
.10 percent or more by weight. Or, the State may prove by other
evidence, direct or circumstantial, that the defendant was under the
influence of intoxicating drugs or alcohol to a degree that rendered
her incapable of safely operating her motor vehicle. In other
words, the State may prove defendant’s guilt by evidence of the
surrounding facts and circumstances other than the chemical breath
test and including the facts and circumstances relating to the
defendant’s conduct.
“Let’s start -- let’s back up and start with that first method
by which the State may prove the defendant’s guilt. If you find
beyond a reasonable doubt that the defendant’s blood alcohol
concentration was .10, that is, one-tenth of one percent or more by
weight as shown by the chemical analysis of her breath, then it is
your duty to return a verdict of guilty. Once the evidence
____________________________________
doubt. And, they haven’t shown how this computer, this machine,
this black box, how it was programmed * * *.”
Defense counsel then argued:
“The State has the burden of proof and they haven’t even
shown you what the machine looks like. They haven’t brought the
machine in. * * * They haven’t had someone on the stand to
testify how the machine works, here are the parameters, here’s
what it does. Blind faith.
“* * *
“The State wants you to believe the breathalyzer machine,
the computer, the black box. The State wants you to believe that
it’s infallible, that it doesn’t make any mistakes. Well, if that
machine is wrong, then there’s certainly reasonable doubt about
whether she was intoxicated to a degree that she can’t drive
safely.”
Later in his closing argument, defense counsel questioned the validity of the breathalyzer
test by comparing that technique with that of a blood test. In particular, he argued:
“They gave her a breath test. They didn’t give her a blood
test. The State wants you to convict based on her blood alcohol
level being .10 or higher. Well, common sense is the best way to
prove that is not by some machine. The best way to prove that is
by a blood test. It’s common sense.”
- 19 -
establishes that the defendant’s blood alcohol level was .10 or
more, she’s guilty of the crime regardless of how the alcohol
affected her.”
The trial justice then gave the following cautionary instructions in response to the
unsupported and improper comments made by defense counsel during his closing argument:
“Let me caution you about one more thing. It’s been
suggested to you that you should find the defendant not guilty
because the State has failed to come forward with evidence to
prove the scientific validity and reliability of the Intoxilyzer 5000
used to perform the chemical analysis of the defendant’s breath
and to determine her blood alcohol level. You’ve been invited to
speculate that the machine or its programs are not reliable or
scientifically valid, and you’ve been invited to speculate that a
blood test is a more reliable indicator of a person’s blood alcohol
level, that the Intoxilyzer 5000 is not capable of accurately
measuring a person’s blood alcohol levels. Proof of the scientific
validity and reliability of the Intoxilyzer 5000 is not an element of
the crime with which the defendant has been charged and the State
is not required to present evidence of that. As you know, it’s my
job to determine what evidence is properly put before the jury. I
have determined that the results of the chemical breath analysis
should be admitted into evidence in this case for your
consideration. Because of that, you are to consider those results in
determining the guilt or innocence of the defendant. You may
assume that the chemical breath analysis made through the use of
the Intoxilyzer 5000 machine is scientifically valid and reliable.
You may assume that the use of the Intoxilyzer 5000 is a legitimate
method of determining blood alcohol levels.
“Furthermore, there’s no evidence in this case that this
particular machine was not working properly on the day in
question. You are entitled to assume, therefore, that it was. If you
were to conclude that it was not, you would only be speculating
about something you know nothing about and have no evidence
about.
“Finally, I would caution you that the law does not require
the defendant’s guilt or innocence to be proved through the use of
a blood test. You should not speculate about whether a blood test
would have produced a more or less accurate result under the
circumstances of this case.” (Emphasis added.)
- 20 -
After the trial justice had finished instructing the jury, defense counsel vigorously
objected to the instruction concerning the breathalyzer, and he requested a curative instruction.27
The trial justice denied the request.28
A trial justice’s jury instructions will be affirmed when the instructions adequately cover
the law and, when viewed as a whole from the perspective of a jury that is composed of ordinary,
intelligent lay people, the instructions do not reduce or shift the state’s burden of proof. State v.
Keiser, 796 A.2d 471, 472 (R.I. 2002) (mem.) (“We have regularly held that we shall affirm a
trial justice’s jury instructions when, examined in their entirety from the perspective of a jury of
27
Defense counsel voiced some doubt as to whether a curative instruction would be
efficacious. He summarized his lengthy objection to the jury instructions as follows:
“And for those reasons, I would object, and I’m not sure if
it can be cured by an instruction. If it could, the instruction would
be something to the effect that, ‘You are the sole determiners of
the fact.’ I would ask the Court to instruct the jury that, ‘You are
in fact to determine that you have to be convinced beyond a
reasonable doubt that this machine is in fact scientifically valid,
that it does work; that if you have a reasonable doubt about that,
that you’re to find that you can disregard the breathalyzer results.’”
28
Defense counsel then moved for a mistrial as follows:
“Judge, I would move for a mistrial based on the fact that I
feel you have instructed, in essence, for the jury to find my client
guilty. Your instruction was to assume that the result is accurate.
That’s tantamount to saying to the jury, ‘Find my client guilty,’
and therefore I would move for a mistrial.”
The trial justice denied the motion for a mistrial, stating:
“I think what I instructed them was about the reliability and
scientific validity of the Model 5000 Intoxilyzer. I don’t think I
instructed them that they had to accept these particular results.”
In view of our decision to the effect that the instructions as given do not provide a basis
for reversal, we see no abuse of discretion in the denial of the motion for a mistrial. See State v.
DePina, 810 A.2d 768, 777 (R.I. 2002) (“The denial of a motion to pass a case and declare a
mistrial lies within the discretion of the trial justice and will be disturbed only if it is clearly
wrong or if the trial justice has abused his or her discretion.”).
- 21 -
ordinary intelligent lay people, the instructions adequately cover the law and neither reduce nor
shift the state’s burden of proof.”); see also State v. Grayhurst, 852 A.2d 491, 517 (R.I. 2004).
Although there is no established rule for remedying improper comments made during
closing arguments, a cautionary instruction to the jury certainly is an appropriate remedial
measure. See State v. Boillard, 789 A.2d 881, 883 (R.I. 2002) (“Our cases have not established a
clear, bright-line rule by which trial justices can determine whether remarks by counsel during
closing arguments are improper, and if they are, what remedy is required.”).29
Before the actual beginning of the trial, the trial justice had informed defense counsel
that, although the results of the breathalyzer test administered to defendant were admissible,
defendant could certainly challenge the scientific validity and reliability of those results by
legitimate means during the trial. She specifically admonished defense counsel, however, that:
“[W]hen we start this trial I’m going to be very careful to make sure that the jury is not invited to
speculate about those issues.”
Despite being warned, defense counsel did precisely what he had been warned against.
In his closing argument, defense counsel invited the jury to speculate about the validity and
reliability of the breathalyzer machine without ever having presented any evidence to support
that thesis during the trial itself. In reaction to what defense counsel had stated in his closing, the
trial justice opted to give a cautionary instruction to the jury indicating that it should not engage
in speculation.
29
Furthermore, it is well established that statements made during closing arguments do not
constitute evidence. See Bleau v. Wall, 808 A.2d 637, 643 (R.I. 2002) (“comments made in
closing arguments are not evidence); see also DePina, 810 A.2d at 777; State v. Garcia, 649 A.2d
1025, 1026 (R.I. 1994); State v. Gaines, 528 A.2d 305, 310 (R.I. 1987).
- 22 -
The trial justice gave an instruction indicating that the jury had to find a blood-alcohol
concentration of 0.10 before it could find defendant guilty.
The key sentence from the
instructions about that aspect of the jury’s duty is the following:
“If you find beyond a reasonable doubt that the defendant’s blood
alcohol concentration was .10, that is, one-tenth of one percent or
more by weight as shown by the chemical analysis of her breath,
then it is your duty to return a verdict of guilty.” (Emphasis
added.)
In a crucially important instruction, the trial justice proceeded to advise the jury as
follows about its role:
“I have determined that the results of the chemical breath analysis
should be admitted into evidence in this case for your
consideration. Because of that, you are to consider those results in
determining the guilt or innocence of the defendant.” (Emphases
added.)30
30
We fully understand and respect the principle that it is improper for a judge to direct a
verdict for the prosecution in a criminal case. See Sullivan v. Louisiana, 508 U.S. 275, 277
(1993) (“The right [to trial by jury] includes, of course, as its most important element, the right to
have the jury, rather than the judge, reach the requisite finding of ‘guilty.’”); Carella v.
California, 491 U.S. 263, 265 (1989) (“Such directions subvert the presumption of innocence
accorded to accused persons and also invade the truth-finding task assigned solely to juries in
criminal cases.”); United Brotherhood of Carpenters and Joiners of America v. United States,
330 U.S. 395, 408 (1947) (“[A] judge may not direct a verdict of guilty no matter how
conclusive the evidence.”); see also United States v. Gaudin, 515 U.S. 506, 517 (1995); United
States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977); Sparf v. United States, 156
U.S. 51, 105-06 (1895); State v. Hazard, 745 A.2d 748, 751 (R.I. 2000).
But no such inappropriate judicial action took place in the case at bar; the trial justice in
this case did not direct a verdict of guilty, but rather submitted the breathalyzer test results to the
jury for its consideration.
In addition, it is noteworthy that, in the course of explaining the concept of “beyond a
reasonable doubt” in her instructions to the jury, the trial justice said the following:
“If you become troubled with the concept, you might
consider approaching it by asking yourselves these kinds of
questions: And these are just examples of how you might
approach it.
“Do I have some doubt about the certainty of the State’s
charges against the defendant? If the answer to that question is
yes, then ask yourself, from where does my doubt come? What
caused it? Is there something about the evidence that troubles me?
- 23 -
The trial justice continued with her instructions telling the jury that it could assume that
“chemical breath analysis made through the use of the Intoxilyzer 5000 machine is scientifically
valid and reliable * * * [and] that the use of the Intoxilyzer 5000 is a legitimate method of
determining blood alcohol levels.” The trial justice also warned the jury not to speculate about
whether the particular machine that was used to administer the breathalyzer test to defendant had
been functioning properly. She said:
“Furthermore, there’s no evidence in this case that this
particular machine was not working properly on the day in
question. You are entitled to assume, therefore, that it was. If you
were to conclude that it was not, you would only be speculating
about something you know nothing about and have no evidence
about.”
We have previously upheld jury instructions that charged the jury that a BAC finding of
0.10 percent or more was proof of intoxication. Lussier, 511 A.2d at 960 (“Once the record
indicates one-tenth of one percent or more, the penal consequences will apply without regard to
how the alcohol has affected the individual personally.”); see Lusi, 625 A.2d at 1353
(specifically commenting on the validity of the jury instruction in Lussier); see also Miller v.
Rhode Island Hospital, 625 A.2d 778, 781-82 n.3 (R.I. 1993) (“In Rhode Island a finding of 0.10
blood-alcohol content is definitive proof that a motorist is driving while intoxicated.”).
____________________________________
Or is it a lack of evidence that troubles me? You should think
about the state in which the evidence has left your mind. Is it a
state of certainty? Do you have an abiding and lasting conviction
in your mind that the elements of the charges have been proved?
Or do you have doubt? Are your doubts something you conjured
up on your own? Are your doubts something that came from the
trial evidence? Were they caused by the trial evidence or lack of
evidence? Considering the trial evidence that you believe, is your
doubt rational? Is it appropriate considering the trial evidence?”
It is clear to us that this language conveyed to the jury in cogent terms the message that it was
free to mull over the evidence before reaching a decision as to innocence or guilt.
- 24 -
We are satisfied that the jury instructions, when viewed in their entirety, did not reduce or
shift the state’s burden of proof.31 We especially note the fact that, time and time again, the trial
justice told the jury that its role was to consider the results of the chemical breath analysis; at no
time was the jury told that it had to find the defendant criminally guilty. The trial justice’s
instructions properly informed the jury of the state’s burden of proof, and her cautionary
instruction properly told the jury to consider and weigh only the evidence that was before it and
to refrain from speculating about matters that had not been entered into evidence and about
which it had no knowledge.
Accordingly, we hold that the trial justice committed no reversible error in instructing the
jury.
For the reasons set forth in this opinion, the judgment of the Superior Court is affirmed.
The record may be returned to the Superior Court.
31
We are acutely aware of the principle that “[j]ury instructions relieving States of [the
burden of proving beyond a reasonable doubt every element of the charged offense] violate a
defendant’s due process rights.” Carella v. California, 491 U.S. 263, 265 (1989); see also State
v. Hazard, 745 A.2d 748, 751 (R.I. 2000). No such violation occurred in this case.
- 25 -
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