DUI Appeal of the Day (DAD) - Failure to prove Impairment Despite .09 and Death

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This case comes to DAD from expert and Mass attorney Tom Workman. In Commonwealth v. Filoma (2011) a Massachusetts jury convicted the defendant of, inter alia, operating under the influence and causing serious bodily injury. The facts established that the defendant consumed 4-6 beers at a Super Bowl party, and then (when the Patriots won) he attempted to drive to an ex-girlfriends house. The massive fans on the street made travailing the streets difficult. He drove backwards on a one-way street at about 20-35 mph until police attempted to stop him. He then drove forward at speeds up to 60mph while students/fans jumped out of the way. He eventually struck 5 pedestrians, killing one and seriously injuring 2 others. At the station, he passed the only filed sobriety test. Many hours post-arrest, he blew .09 Brac twice. The State chose to omit any instructions regarding a presumption of guilt at or above 0.08 (perhaps because of the time delay).



The State 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 appeals court went on to state:

"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. (citation) 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."

The appeals court therefore reversed the conviction for OUI outright.





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