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16-P-192 Appeals Court

COMMONWEALTH vs. JUDITH A. GALLAGHER.

No. 16-P-192.

Hampden. February 7, 2017. - April 21, 2017.

Present: Green, Meade, & Agnes, JJ.

Motor Vehicle, Operating under the influence. Intoxication. 

Evidence, Intoxication, Opinion. Practice, Criminal, 

Witness. Witness, Police officer.

Complaint received and sworn to in the Chicopee Division of 

the District Court Department on June 30, 2014. 

The case was tried before Bethzaida Sanabria-Vega, J. 

Colin Caffrey for the defendant.

Kelsey A. Baran, Assistant District Attorney, for the 

Commonwealth.

MEADE, J. After a jury trial, the defendant was convicted 

of operating while under the influence of intoxicating liquor

(OUI), in violation of G. L. c. 90, § 24(1)(a)(1). On appeal, 

she claims that the judge improperly admitted a State trooper's 

testimony concerning her impairment to operate a motor vehicle, 
2

and that the evidence was insufficient to support her

conviction. We affirm.

1. Background. a. The incident. In the early morning 

hours of June 29, 2014, the Massachusetts State police were 

conducting an OUI checkpoint on Route 33 in Chicopee.1 State 

Trooper John Haidousis, who had ten years of experience working 

in law enforcement,2 was assigned to work the secondary location, 

i.e., the parking lot of Monroe Muffler, a business located 

directly off of Route 33.3 The business parking lot was brightly 

lit, the ground was flat and paved, and individual parking spots 

were marked visibly by painted lines on the pavement. 

At about 12:15 A.M., the defendant, as directed by another 

trooper, drove her vehicle into the secondary location parking 

lot without incident. Trooper Haidousis directed her to park in 

one of the marked parking spots. The defendant failed to do as 

instructed, instead parking her vehicle "crooked[ly]" or

"diagonally across two parking spots." Upon request, the 

defendant produced a driver's license and perhaps a

 

1 Route 33 is a main thoroughfare in Chicopee that is 

located in close proximity to the Massachusetts Turnpike.

2 Trooper Haidousis was trained in investigating OUI cases 

at the police academy.

3 An OUI checkpoint consists of two locations. The first is 

a primary stop, where troopers will initially stop motor 

vehicles and converse with the drivers. The second location is 

where a driver who is suspected of being under the influence of 

alcohol will be directed and questioned further. 
3

registration; Trooper Haidousis determined that she was seventyone years old. 

As Trooper Haidousis spoke to the defendant he detected an 

odor of alcoholic beverage coming from her mouth, and observed 

her eyes to be "bloodshot and glassy." Trooper Haidousis asked 

the defendant whether she had consumed any alcohol, to which she 

replied that she had consumed three beers, and had started 

drinking around midnight. Her speech was "a bit slurred." 

Based on these observations, Trooper Haidousis asked the 

defendant to perform field sobriety tests, to which she 

consented. 

When the defendant got out of her car, the trooper again 

detected the smell of alcohol coming from her person. She was 

wearing flip-flop-style shoes. He instructed her to stand in 

one spot, and as he explained the field sobriety tests, he 

observed her "swaying a bit back and forth." When asked if she 

had any injuries that would prevent her from performing the 

tests, the defendant replied that she had arthritis in her hips, 

but she nonetheless agreed to perform the tests. 

Trooper Haidousis first had the defendant perform the 

"nine-step walk and turn" test. To perform this test, the

defendant was instructed to stand up straight, and to keep her

arms by her sides. She was told to take nine forward steps on a 

painted straight line in the parking lot, heel to toe, while 
4

counting out loud to nine. At the ninth step, the defendant was 

to turn around and walk nine steps back in the same fashion, 

i.e., heel to toe, while she counted out loud to nine, keeping 

her hands by her sides the entire time. The defendant listened 

to the instructions, and began the test without incident.

During the first part of the test, the defendant did not 

take all nine steps, instead taking only seven, and she stepped 

off of the painted line. She also failed to touch her heel to 

her toe, as instructed, on each step. On the return trip, she 

only took six of the nine required steps, again stepping off of 

the line, and again missing the heel to toe instruction. 

Trooper Haidousis explained in his testimony that failure to 

take all nine steps is an "indicator[] that we look for." 

The defendant was then instructed to complete the "one-leg 

stand" test, which is another standardized field sobriety test 

to detect impairment due to alcohol consumption. She was 

instructed to stand with her arms by her sides. Then she was to 

raise one leg of her choice approximately six inches off of the 

ground, while she kept her arms by her sides. Once her leg was 

elevated, the defendant was required to count out loud until she 

reached thirty. Trooper Haidousis used his wristwatch to track 

the accuracy of the defendant's thirty-second count. The 

defendant listened to the instructions and began the test 

without incident. However, the defendant was unable to complete 
5

the test as instructed as she put her foot down after only ten 

or eleven seconds. She was also "swaying from side to side, not 

standing up straight," and failed to count out loud, as she had 

been instructed.4 

The final field sobriety test the trooper had the defendant 

perform was the recitation of the alphabet. In preparation for 

this test, the trooper asked the defendant what was the highest 

level of education she had attained, and if she knew the 

alphabet. The defendant properly recited the alphabet. 

After he finished administering the field sobriety tests, 

Trooper Haidousis "formed the opinion that [the defendant] was 

under the influence of alcohol." When asked if he made a 

determination as to the level of the defendant's impairment, the

trooper replied, over objection, that "her ability -- she was 

impaired to operate a motor vehicle." Trooper Haidousis based 

this determination on his detection of an odor consistent with 

alcohol emanating from the defendant, her glassy and bloodshot 

eyes, her slurred speech, her admission to consuming alcohol,

and her performance on the field sobriety tests, as well as the 

manner in which she parked her car in the secondary location. 

Based on these factors, Trooper Haidousis arrested the defendant

 

4 Trooper Haidousis was aware that the DWI Detection and 

Standardized Field Sobriety Testing manual suggests that people 

older than the age of sixty-five or those with back, leg, or 

inner ear problems may have trouble performing these two tests. 
6

for OUI. Subsequent to Trooper Haidousis's testimony, the 

parties stipulated to the elements of operation and public way. 

b. Jury instructions. As part of her final charge to the 

jury, the judge instructed the jury that: 

"Your function as the jury is to determine the facts of 

this case. You are the sole and exclusive judges of the 

facts. You alone determine what evidence to accept, how 

important any evidence is that you do accept, and what 

conclusions to draw from all the evidence. You must apply 

the law as I give it to you, to the facts as you determine 

them to be, in order to decide whether the Commonwealth has 

proved [the defendant] guilty of this charge."

She also instructed that they were "not to be swayed by 

prejudice or by sympathy, by personal likes or dislikes, toward 

either side." 

After she instructed the jury on the elements of the crime, 

the judge reminded the jury of the stipulation and its effect. 

She also instructed on what it means to be "under the influence 

of alcohol," and she gave a specific instruction regarding 

Trooper Haidousis's opinion relative to the defendant's level of 

impairment: 

"You have heard testimony of an opinion about [the 

defendant's] sobriety. Ultimately, it is for you as the 

jury to determine whether she was under the influence of 

alcohol, according to the definition I have provided. You 

may consider any opinion you have heard and accept it or 

reject it. In the end, you and you alone must decide 

whether she was under the influence of intoxicating 

liquor." 

Both the Commonwealth and the defendant were satisfied with the 

judge's charge to the jury.
7

2. Discussion. a. Opinion testimony. The defendant 

claims that the judge erred by admitting Trooper Haidousis's 

testimony that she was "impaired to operate a motor vehicle." 

We agree, but we conclude the error was not prejudicial.

Because the claimed error was preserved, we must determine 

whether the admission in evidence of the improper opinion 

constituted prejudicial error. "An error is not prejudicial if 

it 'did not influence the jury, or had but very slight effect'; 

however, if we cannot find 'with fair assurance, after pondering 

all that happened without stripping the erroneous action from 

the whole, that the judgment was not substantially swayed by the 

error,' then it is prejudicial." Commonwealth v. Cruz, 445 

Mass. 589, 591 (2005), quoting from Commonwealth v. Flebotte, 

417 Mass. 348, 353 (1994). See Kotteakos v. United States, 328 

U.S. 750, 764 (1946).

"In a prosecution for operating a motor vehicle while under 

the influence of alcohol, lay witnesses, including police 

officers, may not opine as to the ultimate question whether the 

defendant was operating while under the influence, but they may 

testify to [her] apparent intoxication." Commonwealth v. Canty, 

466 Mass. 535, 541 (2013), quoting from Commonwealth v. Jones, 

464 Mass. 16, 17 n.1 (2012). A lay opinion, as opposed to an

expert opinion, is admissible "only where it is '(a) rationally 

based on the perception of the witness; (b) helpful to a clear 
8

understanding of the witness's testimony or the determination of 

a fact in issue; and (c) not based on scientific, technical, or 

other specialized knowledge.'" Commonwealth v. Canty, supra,

quoting from Mass. G. Evid. § 701 (2013). 

Here, Trooper Haidousis testified that after observing the 

defendant and administering the field sobriety tests, he "formed 

the opinion that [the defendant] was under the influence of 

alcohol." When asked if he made a determination as to the 

defendant's "level of impairment," Trooper Haidousis stated that 

he determined that the defendant "was impaired to operate a 

motor vehicle." The first portion of this testimony, i.e., the 

opinion that the defendant was under the influence of alcohol,

was proper. See Commonwealth v. Saulnier, 84 Mass. App. Ct. 

603, 605 (2013). However, the second portion, where the trooper 

opined that the defendant's level of intoxication rendered her 

impaired to operate her vehicle, is the type of evidence that 

was prohibited in Canty, supra at 544. This type of testimony 

comes close to an opinion on the ultimate issue of guilt or 

innocence, and presents a danger of unfair prejudice. See id.

at 543-544. At the same time, in view of the whole case, the 

prejudice flowing from this opinion would be relatively modest 

given what must have been obvious to the jury, i.e., that the 

arresting trooper believed the defendant's ability to operate 

her car was impaired by alcohol consumption.
9

Here, the judge gave a specific instruction regarding 

Trooper Haidousis's opinion relative to the defendant's level of 

impairment. The instruction told the jury that it was for them, 

and them alone, to determine whether the defendant was under the 

influence of alcohol, and that the jury were free to accept or 

reject any opinion on the issue. The instruction was nearly 

verbatim of that given in Canty, where the Supreme Judicial 

Court found no prejudicial error in the opinion testimony of the 

officer. Id. at 545 ("Any such risk [of prejudice] was 

diminished by the judge's explicit final instruction to the jury 

that they ultimately must determine whether the defendant was 

under the influence of alcohol, and that they may consider any 

opinion they heard about the defendant's sobriety 'and accept it 

or reject it'"). The inclusion of this instruction greatly 

diminished the risk of any prejudicial effect the improper

opinion testimony may have had on the jury. See ibid.

5

Furthermore, there was compelling, if not overwhelming,

evidence that supported the jury's conclusion -- apart from the 

 

5 The dissent takes issue with the propriety of the Supreme 

Judicial Court's conclusion in Canty that this instruction 

ameliorates the risk of prejudice. See post at . The 

defendant made this claim neither at trial nor in his appellate

brief, and the issue is not before us. See Mass.R.A.P. 

16(a)(4), as amended, 367 Mass. 921 (1975) (claims not raised in 

briefs are waived). In any event, even if we were inclined, we 

lack the authority to "alter, overrule or decline to follow the 

holding of cases the Supreme Judicial Court has decided." 

Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003).
10

improper opinion testimony -- that the defendant's intoxication 

impaired her ability to operate a motor vehicle. See ibid. Cf.

Commonwealth v. Saulnier, supra at 607 (no substantial risk of 

miscarriage of justice where improper opinion testimony about 

defendant's impaired ability to operate motor vehicle outweighed 

by overwhelming evidence of diminished capacity). From the very 

beginning of the encounter with the troopers, the defendant 

exhibited signs of alcohol impairment. When she pulled into the 

secondary location, she failed to follow instructions to park in 

a single designated parking space, and instead parked her 

vehicle in a crooked manner across two spaces. Her eyes were 

glassy and bloodshot, and her speech was "a bit slurred." 

Trooper Haidousis detected an odor of alcohol coming from the 

defendant when she was in her vehicle and when she exited the 

vehicle. Most notably, the defendant admitted to consuming 

three beers at midnight, which was approximately fifteen minutes 

before she arrived at the secondary location.6

In addition, while the defendant stood outside her car and 

received instructions on how to perform the field sobriety 

tests, she swayed back and forth. During the nine-step walk and

turn test, she failed to touch her heel to her toe, failed to 

 

6 Although it is unlikely the defendant actually could have 

consumed three beers in fifteen minutes, she nonetheless 

admitted to drinking alcohol, and the implausibility of her 

expressed timeline lends further support to the jury's 

conclusion that she was impaired.
11

remain on the painted line as instructed, and completed only 

thirteen of the eighteen over-all required steps. When the 

defendant attempted the one-leg stand test, she failed to 

elevate her foot as instructed for the designated amount of 

time, she was unable to stand up straight, she failed to count 

aloud, and she swayed from side to side.7

Although the defendant was able to recite the alphabet, the 

remainder of her performance on the field sobriety tests as well 

as her behavior ancillary to the tests and her physical symptoms

provided overwhelming evidence that her ability to operate was 

impaired by her alcohol consumption. When this evidence is 

coupled with the judge's instruction on opinion testimony, as 

well as the remainder of her instructions, and viewed against 

the backdrop of the entire trial, which includes the improper 

admission of the trooper's opinion, we are fairly assured that 

the jury were not substantially swayed by the error. See 

Commonwealth v. Flebotte, 417 Mass. at 353. To the extent there 

was any resulting effect on the jury occasioned by the trooper's 

 

7 The dissent's suggestion, post at , that jurors should 

be instructed that testimony relative to field sobriety tests is 

not scientific is not a claim raised by the defendant, and it is 

not before us. See note 5, supra. 
12

opinion, it was slight. See Kotteakos v. United States, 328 

U.S. at 765.8

b. Sufficiency of the evidence. The defendant also claims 

that there was insufficient evidence to support her conviction. 

We disagree. "When analyzing whether the record evidence is 

sufficient to support a conviction, an appellate court is not 

required to 'ask itself whether it believes that the evidence at 

the trial established guilt beyond a reasonable doubt.' . . .

Rather, the relevant 'question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.' Commonwealth v. 

Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)." Commonwealth v. Rocheteau, 

74 Mass. App. Ct. 17, 19 (2009). 

 

8 The dissent posits, post at , that unlike Canty, the 

error was prejudicial because there were different or additional 

indicia of impairment in Canty not present here. For example, 

the dissent identifies the absence of erratic driving in this 

case that was present in Canty. See post at . However, 

evidence of erratic driving is not a necessary component of the 

Commonwealth's burden of proof. Commonwealth v. Connolly, 394 

Mass. 169, 173 (1985). In any event, even if the evidence in 

the two cases veers from identicality, the Supreme Judicial 

Court did not set the facts in Canty as a floor for the strength 

of evidence required to overcome prejudice caused by improper 

opinion testimony. Notably, the dissent cites no case in which 

opinion testimony of the type involved in the present case 

furnished grounds for reversal, particularly when ameliorated by 

the instruction administered in both Canty and this case.
13

When evaluating sufficiency, the evidence must be reviewed 

with specific reference to the substantive elements of the 

offense. See Jackson v. Virginia, supra at 324 n.16; 

Commonwealth v. Latimore, supra at 677-678. In the 

circumstances of this case, to establish the defendant's guilt 

of OUI in violation of G. L. c. 90, § 24(1)(a)(1), the 

Commonwealth was required to prove that the defendant (1)

operated a motor vehicle, (2) on a public way, (3) while under 

the influence of alcohol. Commonwealth v. Palacios, 90 Mass. 

App. Ct. 722, 728 (2016). At this defendant's trial, the first 

two elements, operation of a vehicle and public way, were 

stipulated to by the parties. Therefore, the only element the 

Commonwealth was required to prove was that the defendant was 

under the influence of alcohol. However, the Commonwealth need 

not prove that the defendant was drunk, only that alcohol 

diminished her ability to operate a motor vehicle safely. 

Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988).

The evidence recited previously in part 2.a, supra, which 

supported our conclusion that the error in the trooper's 

testimony was not prejudicial, also supports our determination 

that the evidence was sufficient to support the defendant's 

conviction. In the light most favorable to the Commonwealth, 

the defendant exhibited classic symptoms of alcohol 

intoxication: her eyes were bloodshot and glassy; an odor of 
14

alcohol emanated from her person; her speech was slurred; she 

admitted to drinking three beers; she parked her car 

"crooked[ly]" or "diagonally" across two parking spaces, 

contrary to instructions; she swayed and could not stand 

straight while being instructed on how to perform field sobriety 

tests; and she was unable to properly perform two out of three 

of the tests. From all of this, a rational jury were entitled 

to find the defendant guilty of OUI.

Relying on authority from outside the Commonwealth, see 

United States v. Horn, 185 F. Supp. 2d 530, 558 (D. Md. 2002), 

the defendant claims that the field sobriety tests she failed 

are not conclusive evidence of intoxication. Putting aside 

whether this is true, see Commonwealth v. Brown, 83 Mass. App. 

Ct. 772, 776-777 (2013) ("The responses of a person impaired by 

alcohol to [physical field sobriety] tests are incriminating 

'not because the tests [reveal the] defendant's thoughts, but 

because [the defendant's] body's responses [differ] from those 

of a sober person'" [citation omitted]), or that such a 

proposition would go to the weight of the evidence and not its 

sufficiency, as we have recounted, there was abundant additional 

evidence of the defendant's impairment in addition to the field 

sobriety tests.

Finally, the defendant claims that the jury were required 

to speculate that her poor performance on the field sobriety 
15

tests was caused by alcohol intoxication rather than her 

arthritis. "However, to indulge this argument, we would have to 

view the evidence in the light least favorable to the 

Commonwealth, which, of course, we cannot do." Commonwealth v. 

Arias, 78 Mass. App. Ct. 429, 435 (2010). See Commonwealth v. 

James, 30 Mass. App. Ct. 490, 491 n.2 (1991). See also

Palmariello v. Superintendent of Mass. Correctional Inst. 

Norfolk, 873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S. 

865 (1989) (appellate court not obligated to "reread the record 

from a [defendant's] perspective"). The record evidence, and 

the reasonable inferences drawn therefrom, properly supported

the defendant's conviction.

Judgment affirmed.
AGNES, J. (dissenting). I write separately not because the 

evidence heard by the jury was insufficient to support the 

jury's verdict that the defendant, Judith A. Gallagher, was 

operating her motor vehicle on a public way while under the 

influence of alcohol (OUI) in violation of G. L. c. 90, § 24. 

The evidence of the defendant's guilt was sufficient. The 

question before us, however, is different. We are asked to 

determine whether prejudice resulted from the judge's error in 

allowing the State police Trooper John Haidousis, the sole 

witness at trial, to give his opinion about the defendant's 

guilt, over the defendant's objection and in violation of 

Commonwealth v. Canty, 466 Mass. 535, 543-544 (2013),1 by stating 

that she was "impaired to operate a motor vehicle." The 

standard we must follow requires that we consider what effect, 

if any, the error had on the minds of the jurors, not on our 

own, in relation to the evidence as a whole. Kotteakos v. 

United States, 328 U.S. 750, 764 (1946). In particular, the 

standard is this:

"[I]f, when all is said and done, the conviction is sure 

that the error did not influence the jury, or had but very 

 

1 "The balance we reach is that a lay witness in a case 

charging operation of a motor vehicle while under the influence 

of alcohol may offer his opinion regarding a defendant's level 

of sobriety or intoxication but may not opine whether a 

defendant operated a motor vehicle while under the influence of 

alcohol or whether the defendant's consumption of alcohol 

diminished his ability to operate a motor vehicle safely." 

Canty, supra at 544.
2

slight effect, the verdict and the judgment should stand, 

except perhaps where the departure is from a constitutional 

norm or a specific command of [the Legislature] . . . . 

But if one cannot say, with fair assurance, after pondering 

all that happened without stripping the erroneous action 

from the whole, that the judgment was not substantially 

swayed by the error, it is impossible to conclude that 

substantial rights were not affected."

Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445-446 (1983), 

quoting from Kotteakos, supra at 764-765. 

One way to measure whether the error in admitting lay 

witness opinion testimony, like that involved in this case, was 

prejudicial error is to compare the facts in the instant case to 

those in Canty, where the Supreme Judicial Court concluded that 

the error was nonprejudicial. 466 Mass. at 545. The 

comparison, in my view, does not assist the Commonwealth. In 

Canty, the court described the evidence of the defendant's guilt 

as "overwhelming" based on the following factors: (1) the 

officer's observations of the defendant's "erratic driving," (2) 

the defendant's inability to put his vehicle into "park" when 

directed to do so by the officer, (3) the defendant's difficulty 

in retrieving his identification from his wallet, (4) the 

defendant's "poor" performance on two field sobriety tests, (5) 

the defendant's admission that he had consumed four beers, and 

(6) the discovery of a "half-empty" bottle of liquor in the 

defendant's vehicle. Id. at 537, 545. In the present case, on 
3

the other hand, the evidence, while sufficient to support a jury 

verdict of guilty, was not overwhelming. 

Here, the evidence was that the defendant arrived at a 

State police OUI checkpoint on Route 33 in Chicopee at about 

12:15 A.M. and was directed to a secondary location to speak to 

Trooper Haidousis. She was the sole occupant of the vehicle. 

She was told her to park her vehicle in a marked space in a 

parking lot used by an adjoining business. The testimony was 

that the defendant "parked crooked across the, uh, lines, not 

directly in a space." In Canty, by contrast, a local police 

officer was on a main street in a marked cruiser when he saw the 

defendant's vehicle pass by and "come within four inches of 

striking the curb." Id. at 536. The officer "followed the 

motor vehicle for approximately three-quarters of a mile and 

observed it cross over the white fog line on the shoulder of the 

road and 'drift back' and cross the double yellow line at the 

center of the road." Ibid. Additionally, in Canty, when the 

officer activated the blue lights on his cruiser, the defendant 

did not apply the brakes for fifteen to twenty seconds, and then 

"traveled another fifteen to twenty seconds before pulling over 

to the side of the road." Ibid. 

In the present case, there is no evidence that the 

defendant did not put her vehicle in park and turn off the 

engine when directed to do so. In Canty, by contrast, the 
4

defendant did not put his vehicle in park after he was pulled 

over. Ibid. "Because the vehicle's reverse lights remained on, 

[the police officer] used his cruiser's public address system to 

instruct the driver to put the truck 'in park.' The reverse 

lights remained on, so [the police officer] left his cruiser and 

approached the defendant, who was alone in the motor vehicle, 

again instructing him to put the truck 'into park.' The 

defendant responded that it was not his vehicle." Ibid. 

In Canty, the court noted that "[w]hen [the police officer]

asked the defendant for his license and registration, the 

defendant had difficulty retrieving his identification from his 

wallet." Id. at 537. In the present case, the defendant had no 

difficulty in producing her license for Trooper Haidousis. 

In Canty, the defendant was asked to perform two of the 

three field sobriety tests performed by the defendant in the 

present case: the "nine-step walk and turn" test and the "oneleg stand" test. Ibid. In Canty, the officer conducting the 

tests testified that "[w]hen [the defendant] stepped out of the 

vehicle, [he] tripped over his own feet and 'almost stumbled.'" 

Ibid. When performing the nine-step walk and turn test, the 

defendant in Canty "walked at a complete forty-five degree 

angle, almost like a severe wind was blowing him to the side." 

Ibid. When performing the one-leg stand test, "the defendant 

put his foot down three separate times, and raised his arms to 
5

maintain balance." Ibid. In the present case, there is no 

evidence that the defendant had any difficulty exiting from her 

vehicle. The trooper testified that the defendant followed his 

instructions by assuming the correct position and not beginning 

until instructed to do so. In performing the test, the 

defendant took seven steps forward and six steps back although 

she stepped off of the line and did not keep her feet heel to

toe. When performing the one-leg stand, which requires that a 

person hold one leg six inches off of the ground and, while 

keeping her arms by her sides, count aloud from one one-thousand 

to thirty one-thousand, the defendant put her foot down after 

about eleven seconds and did not count aloud. There also is 

evidence that the defendant successfully completed a third test 

which the trooper described as being able to recite the 

alphabet.

In terms of similarities between the facts in Canty and 

those in the present case, there is evidence that both

defendants admitted to having consumed alcohol (three beers for 

the defendant here and four beers for the defendant in Canty) 

and both exhibited physical signs often associated with 

intoxication (odor of an alcoholic beverage coming from their 

person and bloodshot eyes).2 However, in Canty, the court noted 

 

2 In the present case, the trooper also testified that the 

defendant's speech was "a bit slurred." When asked for details, 
6

that a "half-empty" bottle of liquor was found on the floor of 

the front passenger seat of the defendant's vehicle. Ibid.

There is no precise formula for measuring what effect, if 

any, erroneously admitted evidence has on the minds of jurors. 

However, using the facts in Canty as a guide, the present case 

is not one in which there was overwhelming evidence that the 

defendant operated her vehicle while impaired by alcohol. 

Considering that the evidence portion of the trial consisted of 

only thirty-seven pages of transcript, made up entirely of the 

testimony of Trooper Haidousis, I am unable to say with 

conviction that his erroneously admitted opinion that the 

defendant was "impaired to operate a motor vehicle" either had 

no effect or only a slight effect on the minds of the jury.3 

 

the trooper could not recall any specific words that were 

slurred by the defendant, and did not observe any evidence of 

soiled clothing, fumbling, bruises, or scratches.

3 As a result of a stipulation by the parties, the only 

issue before the jury was whether the Commonwealth proved beyond 

a reasonable doubt that the defendant was under the influence of 

alcohol when operating her vehicle. The judge instructed the 

jury on the basis of the model jury instruction that "[a] person 

is under the influence of alcohol, if she has consumed enough 

alcohol to reduce her ability to operate a motor vehicle safely, 

by decreasing her alertness, judgment and ability to respond 

promptly. It means that a person has consumed enough alcohol to 

reduce her mental clarity, self-control and reflexes and thereby 

left her with a reduced ability to drive safely. The 

Commonwealth is not required to prove that [the defendant]

actually drove in an unsafe or erratic manner, but is required 

to prove that her ability to drive safely was diminished by 

alcohol." The judge appropriately added that the jury may "rely 

on [their] own experience and common sense about the effects of 
7

See, e.g., Commonwealth v. Federico, 425 Mass. 844, 853 (1997);

Commonwealth v. Quinn, 469 Mass. 641, 650 (2014).

There is another feature of this case that I believe 

deserves attention. In Canty, the Supreme Judicial Court 

reiterated the long-standing rule that police officers, like 

other lay witnesses, may "offer their opinion of an individual's 

sobriety." 466 Mass. at 540, citing Commonwealth v. Jones, 464 

Mass. 16, 17 n.1 (2012) (police officer in prosecution for OUI

may testify to defendant's "apparent intoxication"). The court 

explained, supra at 541, that the reason for this rule is that a 

lay witness's opinion about another person's sobriety or 

intoxication is based on reasoning from everyday life 

experiences as opposed to the opinion of an expert witness,

which is based on scientific, technical, or other specialized 

 

alcohol," and that the jury "should consider any believable 

evidence about the defendant's alleged consumption of alcohol, 

as well as her appearance, condition and behavior at that time." 

Finally, the judge told jurors that they "heard testimony of an 

opinion about [the defendant's] sobriety," and that they "may 

consider any opinion [they had] heard and accept it or reject 

it." 

In Canty, 466 Mass. at 545, the court observed that the 

judge's instruction informing the jury that they could accept or 

reject any opinion testimony had a bearing on whether the 

erroneous admission of the police officer's opinion that the 

defendant's ability to drive was impaired by alcohol, i.e., an 

opinion on the ultimate issue, was prejudicial. If the police 

officer should not be allowed to give such an opinion, an 

instruction to the jury that they may accept or reject it hardly 

seems curative.
8

knowledge.4 If, as the Canty court explained, there is a 

distinction between permissible lay witness opinion testimony by 

a police officer about whether a driver is intoxicated and her 

level of impairment in an OUI case, see Mass. G. Evid. § 701 

(2017), and an expert witness opinion in an OUI case that is 

based on "scientific, technical, or other specialized 

knowledge," Mass. G. Evid. § 702 (2016), what are we to make of 

the testimony by the State police trooper in this case that was 

based on "standardized field sobriety test[s]"? 

 

4 "We begin by noting that an opinion regarding a 

defendant's sobriety is a lay opinion, not an expert opinion, 

and the reasons for admitting a lay opinion are wholly different 

from the reasons for admitting an expert opinion. An expert's 

opinion is admissible only where an expert possesses scientific, 

technical, or other specialized knowledge that will assist the 

jury in understanding a fact in issue, and where the expert has 

applied reliable principles and methods to the facts of the 

case. . . . A lay opinion, in contrast, is admissible only 

where it is (a) rationally based on the perception of the 

witness; (b) helpful to a clear understanding of the witness's 

testimony or the determination of a fact in issue; and (c) not 

based on scientific, technical, or other specialized 

knowledge. . . . While an expert opinion is admissible only 

where it will help jurors interpret evidence that lies outside 

of common experience, . . . a lay opinion is admissible only 

where it lies within the realm of common experience, because a 

lay opinion is relevant only where, as with sobriety, the 

principal objective symptoms are so well known that we consider 

the lay opinion to have probative value. . . . Even where a 

witness has described the defendant's appearance, manner, and 

conduct (e.g., bloodshot eyes, slurred speech, and unsteady 

gait), a lay opinion by a percipient witness regarding the 

defendant's intoxication is still of probative value because 

such an opinion, especially as to the level of intoxication, may 

be shaped by observations too numerous or subtle to mention." 

Canty, supra at 541-542 (quotation marks omitted).
9

The bulk of the trooper's testimony with respect to the 

defendant's impairment due to the consumption of alcohol 

consisted of his explanation of the components of the field 

sobriety tests and the defendant's performance on those tests. 

There was no objection to this testimony. Indeed, there were 

many questions asked on cross-examination about field sobriety 

tests, including the trooper's training to look for "certain 

clues," the "instructional phase" and the "performance phase" of 

the tests, the "Standardized Field Sobriety Testing Manual," and 

whether people over the age of sixty-five or those with back, 

leg, or inner ear problems should take the tests. 

The question I raise is not whether police officers, as 

witnesses, should be singled out for special treatment simply 

because they are law enforcement officers. See Commonwealth v. 

Desmond, 345 Mass. 774, 774 (1963). And I do not suggest that 

police officers should be prevented from or limited in 

testifying about a person's "sense of balance, coordination, and 

acuity of mind in understanding and following simple 

instructions." Commonwealth v. Sands, 424 Mass. 184, 188 

(1997). See Commonwealth v. Schutte, 52 Mass. App. Ct. 796, 

800-801 (2001); Commonwealth v. Brown, 83 Mass. App. Ct. 772, 

774 n.1 (2013). See also Commonwealth v. Brennan, 386 Mass. 

772, 779 (1982) (field sobriety tests do not implicate privilege 

against self-incrimination under Fifth Amendment to United 
10

States Constitution or art. 12 of Massachusetts Declaration of 

Rights because they do not force subject to reveal her

"knowledge or thoughts"). Instead, the question is whether 

steps should be taken to ensure that lay witness opinion 

testimony that a person is under the influence of alcohol is not 

misunderstood by jurors as testimony based on scientific, 

technical, or other specialized knowledge. See, e.g., United 

States v. Horn, 185 F. Supp. 2d 530, 560 (D. Md. 2002). See 

also Commonwealth v. A Juvenile, 21 Mass. App. Ct. 121, 125 

(1985) (trial judges have discretion to fashion specific 

instructions to assist jury in determining credibility of 

classes of witnesses "provided these do not create imbalance, or 

indicate the judge's belief or disbelief in the given witness").

In the present case, the judge instructed the jury that 

they "may consider any opinion [they] have heard and accept it 

or reject it." However, if the opinion by Trooper Haidousis was 

inadmissible for the reasons explained in Canty, 466 Mass. at 

544, this instruction was not accurate, and certainly not 

calculated to inform the jury that the basis of the witness's 

opinion was not scientific, technical, or other specialized 

knowledge. Compare Mass. G. Evid. § 702 (2017) with Mass. G.

Evid. § 701 (2017). Perhaps consideration should be given to 

the use of an instruction that informs the jury that a police 

officer's opinion about a driver's performance on field sobriety 
11

tests like those used in this case is not an expert opinion 

based on scientific, technical, or other specialized knowledge 

but, rather, testimony based on the officer's experience, which 

the jury may accept or reject.5

 

5 See State v. Gracia, 51 Conn. App. 4, 19 (1998). In 

Gracia, an OUI case in which the nine-step walk and turn test 

and the one-leg stand test were administered to the defendant, 

the trial judge told the jury that "roadside sobriety tests were 

not scientific evidence, and that it should consider the 

observations made during the tests and use its common experience 

in determining whether the defendant was intoxicated." Ibid. 

The police, of course, are permitted to videotape a 

driver's performance of field sobriety tests, which may be the 

most reliable evidence of a person's "sense of balance, 

coordination, and acuity of mind in understanding and following 

simple instructions." Sands, 424 Mass. at 188. See 

Commonwealth v. Mahoney, 400 Mass. 524, 528 (1987). At one 

time, some police departments routinely videotaped the booking 

process in OUI cases. See, e.g., Commonwealth v. Cameron, 25 

Mass. App. Ct. 538, 543 (1988). See also Commonwealth v. Carey, 

26 Mass. App. Ct. 339, 340 (1988) ("When relevant, videotapes 

have the virtue of presenting an accurate, vivid, and fair 

representation of the way people acted or spoke or how things 

looked when the tape was recorded"). Today, there is technology 

available to (and in some cases used by) the police that would 

permit the videotaping of a driver's performance of sobriety 

tests in the field.