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SJC-11983

              COMMONWEALTH   vs.   SARAH C. ACKERMAN.


                         April 5, 2017.


Supreme Judicial Court, Superintendence of inferior
     courts. Evidence, Medical record, Blood alcohol
     test. Constitutional Law, Confrontation of
     witnesses. Motor Vehicle, Operating under the
     influence. Practice, Criminal, Confrontation of witnesses,
     Interlocutory appeal.


     The defendant, Sarah C. Ackerman, appeals from a judgment
of a single justice of the county court allowing the
Commonwealth's petition pursuant to G. L. c. 211, § 3. We
affirm.

     Ackerman was charged in a complaint with operating while
under the influence of intoxicating liquor, second offense,
pursuant to G. L. c. 90, § 24 (1) (a) (1), and a marked lanes
violation, pursuant to G. L. c. 89, § 4A. The charges resulted
from a single vehicle accident in which the vehicle that
Ackerman was driving struck a utility pole and rolled over.
After the accident, Ackerman was transported to the hospital
where medical personnel administered several computerized
tomography (CT) scans and conducted several tests, including a
blood alcohol test. Although Ackerman recognizes that medical
records are generally admissible pursuant to G. L. c. 233, § 79,
she filed a motion in limine to exclude evidence of the blood
alcohol test from those records based on her right to
confrontation under the Sixth Amendment to the United States
Constitution. A judge in the District Court allowed the motion
and later denied the Commonwealth's motion for reconsideration.
The Commonwealth then asked a different judge to "review and
overrule" the decision. The second judge declined, but did
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allow the Commonwealth's request to stay the proceedings until
the following day to allow the Commonwealth time "to appeal
[from the] in limine ruling." The Commonwealth filed its G. L.
c. 211, § 3, petition that same day, and on the following day, a
single justice allowed it without a hearing. 1

     As Ackerman correctly notes, the fact that the Commonwealth
does not have any other remedy does not make review pursuant to
G. L. c. 211, § 3, automatic, and this court rarely allows
Commonwealth appeals from interlocutory rulings.
See Commonwealth v. Narea, 454 Mass. 1003, 1004 n.1 (2009), and
cases cited. It is equally true, however, that a single justice
has the discretion to address the merits of any such petition
and that "we will not disturb the judgment absent an abuse of
discretion or clear error of law." See id. at 1004. There is
no such abuse of discretion or clear error of law here.

     Pursuant to well-established Massachusetts law, G. L.
c. 233, § 79, "permits the admission in evidence, in the judge's
discretion, of certified hospital records 'so far as such
records relate to the treatment and medical history'" of the
patient. Commonwealth v. Dube, 413 Mass. 570, 573 (1992),
quoting G. L. c. 233, § 79. We construe the statute liberally;
"[t]hus, a 'record which relates directly and mainly to the
treatment and medical history of the patient, should be
admitted, even though incidentally the facts recorded may have
some bearing on the question of liability.'" Commonwealth
v. Dargon, 457 Mass. 387, 394 (2010), quoting Commonwealth
v. DiMonte, 427 Mass. 233, 242 (1998). If, in short and as is
relevant here, the blood alcohol test administered to Ackerman
was "performed as a routine medical practice in the course of

     1
       After the judgment allowing the Commonwealth's petition,
the defendant filed a memorandum in the full court pursuant to
S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule
applies only when a single justice "denies relief from a
challenged interlocutory ruling in the trial court." Id. It
does not apply here, where the single justice granted relief.
We therefore issued an order, after the defendant filed her
memorandum, stating that the appeal "may proceed in the regular
course in accordance with the Massachusetts Rules of Appellate
Procedure." The single justice's ruling was a final judgment
from which an appeal may be taken to the full court. See
Commonwealth v. Clark, 454 Mass. 1001, 1001 (2009), citing
McMenimen v. Passatempo, 452 Mass. 178, 191 (2008). The
Commonwealth's arguments to the contrary notwithstanding, the
defendant's appeal is entirely proper.
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the treatment of the defendant following a motor vehicle
accident," Dube, supra at 570, then the evidence related to the
test is admissible.

     At the hearing on Ackerman's motion in limine to exclude
the blood alcohol test evidence, the trial court judge noted
that "with regard to the medical tests that were done, there
[are] references to reasons why [the medical personnel at the
hospital] ordered . . . some other testing. . . . There is no
reason stated anywhere in the medical records . . . as to why
they ordered the blood alcohol test." It may well be that the
medical records do not expressly state why the blood alcohol
test was administered. That test, however, was just one of a
battery of tests and CT scans that medical personnel performed
in the course of treating Ackerman. She had been in a single
vehicle accident; a police officer who responded to the scene of
the accident had reason to believe that Ackerman was
intoxicated; and numerous entries in her medical record
similarly so indicate. Because Ackerman was agitated and unable
to remain still while medical personnel were treating her, she
was administered Ativan, a sedative. In the circumstances, it
is clear on this record that the blood alcohol test was merely
one of a number of tests conducted as a part of assessing the
condition of and treating the patient as presented. Indeed, it
is eminently logical that, as the Commonwealth suggests, medical
personnel would need to know whether Ackerman was intoxicated
prior to administering this medication to her.

     The single justice did not err or abuse his discretion in
vacating the trial judge's order allowing the motion in limine
and in ordering that the blood alcohol test evidence is
admissible.

                                   Judgment affirmed.


     Andrea C. Harrington for the defendant.
     Megan L. Rose, Assistant District Attorney (Joseph A.
Pieropan, Assistant District Attorney, also present) for the
Commonwealth.
