NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-597

COMMONWEALTH

vs.

MICHAEL CAMERON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the District Court, the 

defendant was convicted of operating a motor vehicle while under 

the influence of intoxicating liquor, third offense.1 On appeal,

he argues that the judge improperly permitted a police officer 

to give an opinion on the ultimate issue, namely, whether his 

consumption of alcohol impaired his ability to drive. He 

1 The defendant pleaded guilty to the subsequent offense 

portion of the charge following the judge's verdict. In 

addition, he was acquitted of negligent operation of a motor 

vehicle stemming from the same incident and found responsible 

for a civil infraction for driving after sunset without the 

car's headlights illuminated.
2

further contends that another police officer offered an improper 

opinion regarding the level of his impairment. We affirm.2

Background. We summarize the facts as the judge could have 

found them. On November 2, 2020, at around 5:35 P.M., Officer 

Austin Buttrick of the Yarmouth police department was on patrol 

when he saw a brown Ford Fusion without its headlights 

illuminated. Because the sun had set approximately thirty 

minutes earlier, Officer Buttrick stopped the vehicle. The 

defendant was the driver and sole occupant of the car. Officer 

Buttrick approached and asked the defendant for his license. 

Initially, the defendant could not retrieve his license, which 

was in his pocket among some cash. Officer Buttrick saw the 

license as the defendant was fumbling with the cash and, after 

some prompting, the defendant handed it over. During this 

exchange, Officer Buttrick observed blood and mucus on the 

defendant's sweater. The defendant's breath smelled of alcohol 

and his eyes were glossy, wet, and bloodshot. In response to 

the officer's question, the defendant said that he had consumed 

"a couple of" beers.

2 A single justice of this court deemed the defendant's

notice of appeal from the denial of his motion for a new trial

as timely filed. However, the defendant makes no arguments 

challenging the denial of the motion in his brief. We therefore 

affirm the order denying the new trial motion.
3

Officer Buttrick then asked the defendant to perform field 

sobriety tests. When he stepped out of the vehicle, the 

defendant stumbled and twice Officer Buttrick had to assist him

so that he would not fall into traffic. Prior to administering 

any of the field sobriety tests, Officer Buttrick asked the 

defendant whether he had any physical or mental impairments that 

would prevent him from performing the tests. The defendant 

replied that he was able to take the tests and stated, "I can do 

that," but, at the same time, he told the officer that "his 

bones [had been] fractured in the past." Although the defendant

indicated that he could perform the tests, he was not able to do 

so safely as he was unable to maintain his balance. Concerned 

that the defendant could fall and injure himself, Officer 

Buttrick decided to end the testing. He arrested the defendant

and transported him to the police station.

Sergeant Brian Carchedi was the supervisor on duty that 

evening and conducted the booking procedure. During his 

interaction with the defendant, Sergeant Carchedi detected a 

strong odor of alcohol and observed that the defendant was 

unsteady on his feet. He also noted that the defendant's eyes 

were bloodshot, his speech was slurred, and his answers to basic 

questions were very confusing. Sergeant Carchedi also saw what 

appeared to be vomit on the defendant's sweater and smelled what 
4

he believed to be feces. In response to a question, the 

defendant admitted that he had consumed three Coors Light beers.

There was also evidence that there was a case of beer,

which was half full, and five or six empty beer cans in the 

rear-hatch area of the defendant's car. In addition, at some 

point after he transported the defendant to the police station,

Officer Buttrick returned to his cruiser and saw what he 

described as "fecal matter" on the seat where the defendant had 

been sitting.

Discussion. 1. Officer Buttrick's testimony. During 

direct examination, Officer Buttrick answered the prosecutor's 

questions regarding the defendant's sobriety as follows.

Q: "And based on your investigation and your opinion, what 

was the cause of his inability to even stand in the 

instructional phase and attempt to perform field sobriety 

testing?"

A: "I believe based off my observations, he was 

intoxicated."

Q: "As a result of your observations of driving, your 

interactions with the defendant, and his inability to even 

participate in field sobriety testing, what did you elect 

to do?"

A: "Placed him under arrest."

Relying on Commonwealth v. Canty, 466 Mass. 535, 540-544 (2013),

the defendant argues that Officer Buttrick's testimony was 

improper because he opined that the defendant had been driving 

while under the influence of alcohol. The defendant did not 
5

object or move to strike the testimony; therefore our review is

limited to whether there was error, and if so, whether that 

error created a substantial risk of a miscarriage of justice. 

See Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 607 (2013).

It is well settled that an opinion regarding a defendant's 

sobriety is a lay opinion and, as such, is admissible. See 

Canty, 466 Mass. at 540-541. However, while lay witnesses,

including police officers, may testify as to a defendant's 

apparent intoxication, they may not offer an opinion on whether 

the defendant was operating a motor vehicle while under the 

influence of alcohol. See id. at 542-543.

The defendant argues that because Officer Buttrick

testified both that the defendant was intoxicated and that he 

had been operating a vehicle, the testimony was the equivalent 

of an opinion on the ultimate issue of whether the defendant was 

driving under the influence of alcohol. We do not agree that 

this sequence in the testimony amounted to an opinion on the 

ultimate issue. Officer Buttrick did not testify that, as a 

result of his intoxication, the defendant's ability to drive was 

diminished as was deemed improper in Canty, 466 Mass. at 543-

544. Rather, he described his observations of the defendant and 

then properly stated that based on those observations, he 
6

believed the defendant was intoxicated. See id. at 542. As 

such, there was no error.3

2. Sergeant Carchedi's testimony. Sergeant Carchedi 

testified that during the booking procedure, he typically forms 

an opinion about the effects he believes alcohol is having on 

the arrestee. He stated that his "options" are "slightly 

impaired, impaired, [or] greatly impaired." Based on his 

observations, Sergeant Carchedi believed the defendant was 

"greatly impaired." The defendant argues that by using a 

"scientific[-]seeming rubric," Sergeant Carchedi improperly

injected an "aura of scientific validity" into his opinion about 

the defendant's level of intoxication that effectively 

transformed a lay opinion into an expert opinion. The defendant 

did not object or move to strike this testimony either, and 

therefore we review the alleged error under the same substantial 

risk of a miscarriage of justice standard. We discern no error.

By describing his options as "slightly impaired, impaired,

[or] greatly impaired," Sergeant Carchedi did not suggest that 

he had any scientific, technical, or specialized training in 

3 We also reject the defendant's related argument that the 

testimony was improper because Officer Buttrick, who is not a 

medical expert, implied that he considered the defendant's 

medical history in giving his opinion that the defendant was 

intoxicated. Contrary to the defendant's assertion, there was 

nothing in the testimony that went beyond a permissible lay 

opinion.
7

evaluating an individual's level of intoxication. Indeed, an 

officer's testimony regarding a defendant's "level" of 

intoxication is admissible. Canty, 466 Mass. at 542, 544. We 

view the sergeant's testimony as consistent with a lay opinion 

based on his observations of the defendant and, therefore, we 

discern no error. See Commonwealth v. Moreno, 102 Mass. App. 

Ct. 321, 325 (2023). Furthermore, although there was no error,

we note that to the extent there was any risk that the 

sergeant's testimony was imbued with an "aura of scientific 

validity," we assume, as we must, "that the judge did not give 

inappropriate weight to [Sergeant Carchedi's] statement, because 

judges in jury-waived trials are presumed to know and correctly 

apply the law." Commonwealth v. Watkins, 63 Mass. App. Ct. 69,

75 (2005).

Finally, because the evidence of the defendant's 

intoxication was strong, even if we were to conclude that any of 

the challenged testimony was improper, there was no substantial 

risk of a miscarriage of justice. See Saulnier, 84 Mass. App. 

Ct. at 607. As noted, the defendant had a strong odor of 

alcohol on his breath, was unsteady on his feet, had bloodshot
8

and glossy eyes, had slurred speech, smelled of vomit and feces,

had several empty beer cans in the car, and admitted that he had 

consumed a few beers.

Judgment affirmed.

Order denying motion for new 

trial affirmed.

By the Court (Vuono,

Massing & Toone, JJ.4),

Assistant Clerk

Entered: June 5, 2024.

4 The panelists are listed in order of seniority.