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

22-P-225

COMMONWEALTH

vs.

MICHAEL J. BASSETT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Michael J. Bassett, was convicted of 

operating a motor vehicle under the influence of intoxicating 

liquor (OUI), third offense, in violation of G. L. c. 90, § 24 

(1) (a) (1). On appeal, he argues that the trial judge abused 

his discretion by redacting a medical record in an arbitrary and 

inconsistent manner and by admitting in evidence certain 

unredacted statements that spoke directly to the issue of 

liability. Discerning no error, we affirm.

Background. We summarize the facts that the jury could 

have found at trial, reserving certain details for our 

discussion of the specific issues. On January 12, 2018, at 

approximately 10 P.M., the defendant was involved in a singlevehicle accident in Billerica. His sport utility vehicle (SUV), 

which he was driving and of which he was the sole occupant, 
2

crossed the white fog line and collided with a telephone pole in 

front of the 99 Restaurant on Boston Road, overturning and 

coming to rest on its roof in the middle of the road. Billerica 

police officer John Slaney, who was nearby at the time, was 

dispatched and responded to the scene within one minute.

On arrival, Officer Slaney found the defendant "standing 

. . . against the vehicle on the passenger side front."1 

"Several people" had exited the restaurant and were observing. 

The defendant was bleeding from the head, smelled of alcohol, 

and had glassy eyes. Officer Slaney guided the defendant over 

to his patrol vehicle, during which time he noticed that "[the 

defendant] was a little unsteady on his feet." The officer 

asked the defendant about his wellbeing, to which the defendant 

responded that "he was okay."

Shortly thereafter, paramedics arrived and provided 

additional care to the defendant. After approximately fifteen 

minutes, the defendant was transported to Lahey Clinic in 

Burlington for further treatment. Once at the Lahey Clinic 

emergency department, nurses and clinicians treated the 

defendant, memorializing their observations of him in a medical 

record. They made, inter alia, repeated notes of his apparent 

intoxication during the course of their treatment. They further 

1 Medical providers would later note that the defendant "self 

extricated" from the vehicle after the turnover.
3

noted that he refused to remove his clothing for a complete exam 

and that he stated "I am fine[.]"

The defendant was charged with OUI and a marked lanes 

violation.2 Prior to trial, the defendant moved to suppress 

evidence stemming from a blood draw that was conducted at Lahey 

Clinic, arguing that it was obtained without consent or a 

warrant. The trial judge allowed the defendant's motion but 

permitted other portions of the medical record to enter in 

evidence, subject to redaction.3 The Commonwealth and the 

defendant agreed to many of the redactions, however, the 

defendant ultimately objected to two unredacted statements, 

discussed infra.

The defendant was convicted of OUI and subsequently pleaded

guilty to a third offense sentencing enhancement. He was 

sentenced to two years in the house of correction with 180 days 

to serve, and the balance suspended with probation until March 

29, 2022. This appeal followed.

Discussion. 1. Admission of statements in medical record. 

The defendant argues that the trial judge abused his discretion 

2 The defendant was found not responsible for the marked lanes 

violation.

3 The trial judge redacted portions of the medical record in 

response to a motion in limine filed by the defendant. Although 

that motion is not in the record before us, it appears that the 

judge used the redactions to exclude what he determined to be 

unfairly prejudicial evidence, pursuant to Mass. G. Evid. § 403

(2019).
4

by admitting in evidence statements in the medical record that 

spoke directly to the issue of his liability for OUI. We

disagree.

"Generally, determinations as to the admissibility of 

evidence lie 'within the sound discretion of the [trial] 

judge.'" Commonwealth v. Jones, 464 Mass. 16, 19-20 (2012), 

quoting Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). Where 

the defendant objected to the admission of specific portions of 

the medical record at trial, we review for abuse of discretion. 

Jones, supra at 21. When, as here in part,4 the defendant 

appeals the admission of evidence to which he did not object at 

trial, we instead review to see if any error resulted in a 

substantial risk of a miscarriage of justice. Commonwealth v. 

Botev, 79 Mass. App. Ct. 281, 283-284 (2011). 

It is well settled, and the defendant concedes, that 

"[r]ecords kept by hospitals . . . shall be admissible . . . so 

far as such records relate to . . . treatment and medical 

history." G. L. c. 233, § 79. However, "nothing therein 

contained shall be admissible as evidence which has reference to 

the question of liability." Id. The statute is construed 

liberally, permitting "the admission in evidence of statements 

4 On appeal, the defendant challenges portions of the medical 

record contained on pages two, six, seven, eight, eleven, and 

thirty-four. He only objected to statements on pages six and 

eleven at trial.
5

in hospital records bearing on criminal culpability that seem to 

relate at most only incidentally to medical treatment." 

Commonwealth v. Dube, 413 Mass 570, 573 (1992). "Objectively 

determinable facts resulting from medical tests and procedures 

conducted for diagnostic and treatment purposes and appearing in 

hospital records submitted under the statute may obviously bear 

on the ultimate question of civil or criminal liability but do 

not constitute improper allegations, opinions, or conclusions 

about liability." Commonwealth v. McLaughlin, 79 Mass. App. Ct. 

670, 675 (2011).

Here, the judge properly admitted under G. L. c. 233, § 79, 

the portions of the defendant's medical record that spoke to his 

diagnosis and treatment. See Commonwealth v. Lampron, 65 Mass. 

App. Ct. 340, 343-344 (2005) (admitting hospital records 

referring to intoxication in OUI context). See also Mass. G. 

Evid. § 803(6)(B) (2022). At trial, the defendant ultimately 

objected to the admission of two portions of the medical record:

(1) the statement "[a]lcoholic intoxication without 

complication," which appeared under the heading "[c]linical 

[i]mpression"; and (2) the statement "[a]lcohol intoxication," 

which appeared under the heading "[i]njuries." We conclude that 

both statements reflected assessments made by nurses or 

clinicians in the ordinary course of treatment. See 

Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998) (fact-
6

specific references to cause of injury relevant to treatment). 

The defendant was found by police standing next to an overturned 

vehicle with a bloody injury to his head. After the responding 

officer saw him displaying signs of wooziness, he was 

transported to the emergency department at Lahey Clinic for 

further treatment. Providers at the emergency department

observed him and made notes about his medical status in an 

effort to properly identify the source of, and treat him for,

those symptoms and injuries. Id. Their observations regarding 

his intoxication were an appropriate part of that treatment, as 

were their memorialization of those observations into a written 

record. See Lampron, 65 Mass. App. Ct. at 343-344. 

Furthermore, the statements that were admitted did not 

impermissibly speak to the ultimate question of liability. We 

have repeatedly held that medical records alluding to a 

defendant's intoxication may be admitted in OUI cases because 

such statements do not exceed the bounds of G. L. c. 233, § 79. 

See, e.g., Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 727-

728 (2016); McLaughlin, 79 Mass. App. Ct. at 675. The 

challenged statements in this case referred exclusively to 

intoxication, not impairment, and were admitted consistent with 

those rulings. See Palacios, supra. We discern no abuse of 

discretion in the judge's decision to admit these portions of 

the medical record. 
7

For the first time on appeal, the defendant further argues 

that portions of the medical record to which he did not object 

at trial were admitted in error. These statements included (1) 

"[p]atient admitted to alcohol use," (2) "[r]eports he had a few 

drinks [sic] alcoholic drinks tonight," (3) "[d]riving with 

EtOH," (4) "[a]lcoholic [i]ntoxication without complication," 

(5) "[p]lan for patient to sober in the ED," (6) "post motor 

vehicle accident in which his SUV rolled over multiple times 

after he misinterpreted the distance needed to successfully make 

a turn," (7) "[p]t was driving approx 35mph when he reports he 

lost control of the car," and (8) "driver of moderate speed 

rollover MVC." These statements appeared in the medical record 

under the headings "H[istory of] P[resent] I[llness]," 

"E[mergency] D[epartment] Notes," "Events/Environment Related to 

Injury," "Progress Notes," and "Diagnosis."

It is well settled that, where the defendant did not object 

at trial, the issue is not preserved, and we review only for a 

substantial risk of a miscarriage of justice.5 Botev, 79 Mass. 

App. Ct. at 283. We see none here. Like with the portions 

discussed supra, these record entries discussed observations 

5 We note that the statement "[a]lcoholic [i]ntoxication without 

complication" appears twice in the medical record. Defense 

counsel objected to the phrase where it appeared on page six but 

did not object to its appearance again on page thirty-four. We 

accordingly review each statement as it appeared in the record 

under the respective, appropriate standard.
8

made by nurses and clinicians in the course of diagnosing and 

treating the defendant's injuries and did not impermissibly 

relate to the issue of liability. See DiMonte, 427 Mass. at 

242. The defendant having arrived at the emergency department 

following a serious car accident, it was necessary for medical 

providers to contemplate the nature of the crash and the way in 

which alcohol consumption and or intoxication might have 

influenced the defendant's symptoms and treatment. See id. 

Furthermore, we conclude that these statements, none of which 

suggested that the defendant operated a motor vehicle while 

impaired without the need for further analysis, did not speak 

directly to the issue of liability. See Dube, 413 Mass. at 574;

McLaughlin, 79 Mass. App. Ct. at 675. Instead, they represented

the type of objective observations related to medical treatment 

that are explicitly permitted under c. 233, § 79, and our 

previous holdings. See McLaughlin, supra. Accordingly, there 

was no error, much less one creating a substantial risk of a 
9

miscarriage of justice.

Judgment affirmed.

By the Court (Neyman, 

Desmond & Grant, JJ.6),

Clerk

Entered: February 21, 2023.

6 The panelists are listed in order of seniority.