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SJC-11978

                COMMONWEALTH   vs.   GLENIS A. ADONSOTO.



         Norfolk.    February 11, 2016. - September 16, 2016.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.1


Motor Vehicle, Operating under the influence. Constitutional
     Law, Self-incrimination, Breathalyzer test, Confrontation
     of witnesses. Evidence, Breathalyzer test, Hearsay.
     Interpreter. Practice, Criminal, Interpreter, Hearsay,
     Confrontation of witnesses, Instructions to jury.



     Complaint received and sworn to in the Stoughton Division
of the District Court Department on July 23, 2012.

     The case was tried before James H. McGuiness, Jr., J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Christopher DeMayo for the defendant.
     Varsha Kukafka, Assistant District Attorney, for the
Commonwealth.
     Eric R. Atstupenas, for Massachusetts Chiefs of Police
Association, Inc., amicus curiae, submitted a brief.


     1
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                      2



    HINES, J.   The defendant, Glenis A. AdonSoto, was convicted

by a jury of operating a motor vehicle while under the influence

of intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1).     The

defendant, whose native language is Spanish, was stopped in the

early morning hours of July 22, 2012, by a Stoughton police

officer in response to a telephone call from a concerned driver.

After the defendant was arrested and transported to the police

station, the police secured the services of a telephonic

language interpreter service to read the defendant her rights

and instruct her on how to perform the breathalyzer test.     The

defendant did not properly perform the test during three

attempts, producing no usable result.   At the trial, the judge

admitted in evidence the defendant's failure to perform the

breathalyzer test.

    The defendant appealed, asserting as error (1) the

admission of her failure to produce a usable breathalyzer

result, claiming that it should have been excluded as "refusal"

evidence under G. L. c. 90, § 24 (1) (e); (2) the admission of

the interpreter's English language version of her statements as

hearsay and a violation of her constitutional right of

confrontation; (3) insufficiency of the evidence of impairment;

and (4) prejudicial errors in the instructions to the jury.      We

granted the defendant's application for direct appellate review.
                                                                     3


We affirm the conviction based on our conclusions that the

failure to properly perform a breathalyzer test after giving

consent is not inadmissible as refusal evidence; that the

police-appointed interpreter acted as the defendant's agent in

the circumstances of this case, and thus, the statements were

not hearsay; that the defendant's unpreserved confrontation

claim is unavailing, as there is no showing of a substantial

risk of a miscarriage of justice; that the evidence was

sufficient to establish her impairment; and that the jury

instructions did not create prejudicial error.2

     Background.     We recite the facts the jury could have found,

reserving certain details for our discussion of the specific

issues raised.    At approximately 2:30 A.M. on July 22, 2012, a

Stoughton resident who had just left his home to drive to work

noticed the defendant driving down the middle of a two-lane

road, straddling the solid double-yellow line.     A tractor-

trailer truck driving in the opposite direction blew his horn as

a warning signal to the defendant.     The resident was driving in

the same direction as the defendant, and he followed behind her

for ten to twelve minutes.     There was "extremely light traffic"

at the time.     The defendant swerved back and forth in her lane,

and she crossed the fog line approximately twenty times.

     2
       We acknowledge the amicus brief submitted by the
Massachusetts Chiefs of Police Association, Inc.
                                                                     4


    While following the defendant, the resident called the

Stoughton police.   In response, a Stoughton police officer

stopped his police cruiser in the roadway along the route that

the defendant's vehicle was traveling.    The officer observed the

defendant drive through a four-way stop intersection without

stopping.   He activated his lights and followed her, and she

stopped.

    The defendant was alone in the vehicle.     The officer

smelled the odor of alcohol through the vehicle's open window

and noticed that the defendant's eyes were glassy.       The

defendant responded to the officer's questions in Spanish and,

although he knew only a "little" Spanish, he knew enough to

notice that her speech was slurred.   He ordered the defendant

out of the vehicle.    She was unsteady on her feet, but the

officer could not perform a field sobriety test because he could

not effectively communicate with her in a language that they

both understood.    He arrested the defendant and took her to the

police station.

    When they arrived, the officer telephoned a telephonic

language interpreter service to speak to a "registered,

certified interpreter."    The telephone was placed on

speakerphone loud enough for the officer and defendant to hear

the conversation.   The telephone call was not recorded.       The

officer read the defendant the Miranda rights in English, and
                                                                    5


the interpreter relayed them to the defendant in Spanish.     The

defendant nodded her head up and down while the interpreter was

speaking and when asked if she understood, she responded, "Yes,"

in Spanish.   The defendant explained to the interpreter that she

had been at a friend's house and because the friend was

intoxicated, she borrowed her friend's vehicle to drive herself

home.    The officer, through the interpreter, asked if the

defendant would take a breathalyzer test, and the defendant

agreed.   The officer explained the instructions, and the

interpreter relayed them in Spanish.   The interpreter asked the

defendant in Spanish if she understood the instructions, and she

verbally responded, "Yes."

     The officer explained that "[y]ou have to seal your lip[s]

tightly around the . . . mouthpiece and blow until the machine

tells you to stop" in order for the breathalyzer to read a

result.   The defendant did not properly seal her lips during the

first test, and the officer then physically demonstrated the

instructions.3   After the demonstration, the officer asked

through the interpreter if the defendant understood him, and

"she nodded 'Yes' up and down."    The defendant did not seal her

lips around the mouthpiece when the officer administered the

     3
       The police officer described the defendant's actions as
having both sides of her mouth exposed from the mouthpiece that
she was supposed to seal her lips around and blow into, so that
"air was going all over the place."
                                                                    6


test a second and third time.    After the second test, the

officer explained the instructions again and stated that the

breathalyzer machine allowed three attempts so there was only

one more chance to perform the test correctly.    There were no

results from any of the three attempts.

    Discussion.     1.   Evidence of failed breathalyzer test.    The

defendant claims that the judge erroneously admitted evidence of

her failure to properly complete the breathalyzer test, arguing

that evidence of a defendant's "failure" or "refusal" to take a

breathalyzer test is inadmissible in a civil or criminal

proceeding as it is excluded under G. L. c. 90, § 24 (1) (e).

The defendant also argues that the evidence should have been

excluded under Mass. G. Evid. § 403 (2016), because any

probative value was substantially outweighed by the danger of

unfair prejudice.   The defendant's arguments are unavailing.

    Exclusion of refusal evidence is based on a defendant's

privilege against self-incrimination under art. 12 of the

Massachusetts Declaration of Rights.    Commonwealth v. Lopes, 459

Mass. 165, 170 (2011), quoting Opinion of the Justices, 412

Mass. 1201, 1211 (1992).    In Opinion of the Justices, supra, we

stated that a person's refusal to take a breathalyzer test is

testimonial in nature because it creates a "'Catch-22'

situation," where a defendant would be forced to "take the test

and perhaps produce potentially incriminating real evidence;
                                                                   7


refuse and have adverse testimonial evidence used against him at

trial."   We explained that a refusal is akin to a defendant

stating, "I have had so much to drink that I know or at least

suspect that I am unable to pass the test," and accordingly, may

not be admitted at trial.   Id. at 1209.   That rationale for

exclusion of refusal evidence does not apply where, as here, the

defendant initially consented to the test.4

     The Appeals Court reached this conclusion in Commonwealth

v. Curley, 78 Mass. App. Ct. 163, 167-168 (2010), on which the


     4
       As additional support for her argument, the defendant
cites 501 Code Mass. Regs. § 2.16 (2010), entitled, "Breath Test
Refusal," which instructs officers to mark a failed performance
as a "refusal," and provides:

          "If after being advised of his or her rights and the
     consequences of refusing to take a breath test, the
     arrestee refuses to submit to a breath test, none shall be
     given. The Registry of Motor Vehicles (RMV) shall be
     notified of such refusal in a format approved by the
     Registrar. If at any time following an arrestee's initial
     consent to the breath test and prior to the successful
     completion of the test, the arrestee refuses to participate
     or declines to cooperate, the test shall be terminated and
     it shall be noted as a refusal. If the arrestee fails to
     supply the required breath samples upon request, the test
     shall be terminated and it shall be noted as a refusal"
     (emphasis added).

When the emphasized language is read together with the remainder
of the provision, however, it is clear that the regulation
ensures that failure to properly perform a breathalyzer test
does not allow a person to avoid the automatic 180-day
suspension of his or her driver's license under the so-called
implied consent statute, G. L. c. 90, § 24 (f) (1). We do not
consider a "refusal" under this regulation to be a "refusal" for
constitutional purposes.
                                                                     8


judge relied in allowing the Commonwealth's motion in limine to

admit the disputed evidence.    The Appeals Court analyzed whether

a defendant's failure to properly perform a breathalyzer test

after giving consent was testimonial in nature and thus,

required exclusion as "refusal" evidence.     Id.   The court

concluded that the evidence was properly admitted because

consent vitiated the defendant's self-incrimination claim, and

the jury could have inferred that the defendant "was trying to

avoid giving a sample while appearing to try to take the test."

Id. at 168.    The defendant recognizes that the judge properly

relied on Curley, but she distinguishes it, claiming that in her

case there was a likelihood that she was "simply confused and

flustered by the language barrier and the use of a remote

translator" instead of deliberately trying to frustrate the

breathalyzer machine.    The defendant's initial consent to the

breathalyzer test, however, was all that was required for

admissibility.    See id.   Cf. Opinion of the Justices, 412 Mass.

at 1211.   Any explanation for the failure to complete the test

was properly left to the jury.

    Moreover, where the defendant and officer effectively

communicated through physical actions, there was little danger

of unfair prejudice from a potential misunderstanding during the

translation.    The interpreter verbally advised the defendant of

translated instructions, the defendant acknowledged her
                                                                           9


understanding of the verbal instructions by stating "Yes," the

police officer physically demonstrated the instructions, and the

defendant acknowledged her understanding of the physical

instructions by "nodd[ing] 'Yes' up and down."

    2.   Hearsay and confrontation claim.     The defendant next

argues that admission of her statements violated the rule

against hearsay and her right to confrontation under the Sixth

Amendment of the United States Constitution and art. 12.         The

defendant's challenge arises from the testimony of the police

officer, who relayed the content of the defendant's statements

at trial, even though the officer only heard and understood the

interpreter's English language version of those statements.            A

defendant's own statements are admissible as statements of a

party opponent.     Mass. G. Evid. § 801(d)(2)(A) (2016).    The

issue is whether the statements still may be considered those of

the defendant where they are communicated through an interpreter

to a third party and the third party testifies to the statements

at trial.

    a.   Hearsay.    Generally, out-of-court statements offered to

establish the truth of the matter asserted are inadmissible at

trial as hearsay.    See Mass. G. Evid. § 802 (2016).     Statements

"authorized" by the defendant or made by an "agent" of the

defendant, however, are not hearsay and are admissible as those

of the defendant.    Mass. G. Evid. § 801(d)(2)(C),(D).     We
                                                                  10


previously have considered an interpreter to be a "joint agent"

for persons choosing to speak through an interpreter, and

therefore, admitted the translated statements as those of the

speaker.    See Commonwealth v. Vose, 157 Mass. 393, 395 (1892)

(where parties jointly agree to use interpreter, "words of the

interpreter, which are [the] necessary medium of communication,

are adopted by both, and made a part of their conversation as

much as those which fall from their own lips").    See also

O'Brien v. Bernoi, 297 Mass. 271, 273 (1937) (translated

statements of defendant, made by defendant's son, properly

admitted through plaintiff's testimony).

    The defendant argues that the interpreter may not be viewed

as her agent because the interpreter was appointed by the

police.    Although no appellate court in Massachusetts has

analyzed this specific issue, other jurisdictions have rejected

similar challenges.    See, e.g., United States v. Charles, 722

F.3d 1319, 1321, 1326-1327 (11th Cir. 2013) (admission of

government-appointed interpreter's out-of-court translated

statements not hearsay violation because interpreter agent of,

or authorized by, defendant); United States v. Da Silva, 725

F.2d 828, 832 (2d Cir. 1983) (same).    See also United States v.

Vidacak, 553 F.3d 344, 352 (4th Cir. 2009) (government-

contracted interpreter "language conduit" for speaker); United

States v. Sanchez-Godinez, 444 F.3d 957, 960-961 (8th Cir. 2006)
                                                                  11


(Federal agent was agent for defendant in "language conduit"

capacity but was not as interrogating officer); United States v.

Beltran, 761 F.2d 1, 5, 9 (1st Cir. 1985) (State-appointed

interpreter agent of, or authorized by, defendant).

    We agree with the defendant that a government-appointed

interpreter should not always to be considered an agent for the

speaker, but in the circumstances of this case, we conclude that

the interpreter acted as an agent of the defendant.   To

determine whether an interpreter acts as an agent or language

conduit for the speaker, we rely on the factors outlined by the

United States Court of Appeals for the Ninth Circuit in United

States v. Orm Hieng, 679 F.3d 1131, 1139 (9th Cir.), cert.

denied, 133 S. Ct. 775 (2012).   The relevant factors include

"which party supplied the interpreter, whether the interpreter

had any motive to mislead or distort, the interpreter’s

qualifications and language skill, and whether actions taken

subsequent to the conversation were consistent with the

statements as translated."   Id., quoting United States v.

Nazemian, 948 F.2d 522, 527 (9th Cir. 1991), cert. denied, 506

U.S. 835 (1992).

    Although the police supplied the interpreter, and thus, the

first factor weighs in favor of the defendant's claim, on the

specific facts of this case, the remaining factors demonstrate

that the interpreter was acting as an agent of the defendant.
                                                                   12


First, the defendant's actions were consistent with the

statements as translated.   The officer, through the interpreter,

read the defendant her rights and, in response, the defendant

nodded her head "up and down" and verbally stated, "Yes," in

Spanish.   Moreover, after the officer's verbal instructions

about how to perform the breathalyzer test, the defendant

performed most of the actions as instructed -- bringing the

mouthpiece to her lips and blowing into the hose.     The defendant

failed to properly seal her lips around the mouthpiece, but her

conduct indicated that the translator properly relayed at least

part of the instructions.   Also, the interpreter's

qualifications were not in dispute.   The officer testified that

the interpreter was "registered" and "certified," and trial

counsel did not challenge these descriptions.   Last, there is no

indication that the interpreter, obtained through a third-party

interpreter service, had any motive to distort the translation.

In these circumstances, the interpreter may properly be

considered an agent of the defendant for hearsay purposes,

negating exclusion on hearsay grounds.5   See Mass. G. Evid.

§ 801(d)(2)(D).


     5
       Generally, a judge must make a preliminary finding of fact
that the agent was authorized to act on the subject or within
the scope of the relationship before statements are admitted
under Mass. G. Evid. § 801(d)(2)(C) or (D) (2016). See Mass. G.
Evid. § 104(a) (2016). See also Commonwealth v. Irene, 462
                                                                      13


    b.     Confrontation clause.   The defendant argues that even

if the statements made through the interpreter are not hearsay,

admission of the statements violated her confrontation rights

under the Sixth Amendment and art. 12.     The confrontation clause

of the Sixth Amendment to the United States Constitution

guarantees a defendant the opportunity to confront the declarant

of "testimonial" statements to be used against him or her at

trial in the "crucible of cross-examination."     Crawford v.

Washington, 541 U.S. 36, 50-52, 59, 61 (2004) (Crawford).       The

right to confrontation embodied in art. 12 is "coextensive with

the guarantees of the Sixth Amendment."     Commonwealth v.

Zeininger, 459 Mass. 775, 785 n.15, cert. denied, 132 S. Ct. 462

(2011), quoting Commonwealth v. De Oliveira, 447 Mass. 56, 57n.1

(2006).    The defendant did not object to the police officer's

testimony on these grounds.    Therefore, we review the

defendant's claim for a substantial risk of a miscarriage of

justice.   Commonwealth v. Traylor, 472 Mass. 260, 267 (2015),




Mass. 600, 606 n.13, cert. denied, 133 S. Ct. 487 (2012). The
judge also must instruct the jury to consider the evidence only
if they find the same. Id. The defendant did not claim any
error in this regard, and we conclude that any error did not
create a substantial risk of a miscarriage of justice for the
reasons discussed in this decision. Judges considering
admissibility of translated statements through an alleged agent
should analyze the factors discussed in United States v. Orm
Hieng, 679 F.3d 1131, 1139 (9th Cir.), cert. denied, 133 S. Ct.
775 (2012), as set forth above, in making such a determination.
                                                                   14


quoting Commonwealth v. LaChance, 469 Mass. 854, 857 (2014),

cert. denied, 136 S. Ct. 317 (2015).

     As discussed above, the defendant's statements in this case

are not hearsay because the interpreter was acting as an agent

of the defendant.   Nonetheless, confrontation rights are not

governed by common-law hearsay determinations.   See Crawford,

541 U.S. at 61.   See also Melendez-Diaz v. Massachusetts, 557

U.S. 305, 317 (2009) (rejecting "invitation to return to [the

rule] that evidence with 'particularized guarantees of

trustworthiness' was admissible notwithstanding the

Confrontation Clause" [citation omitted]).   The Sixth Amendment

precludes a mechanical application of the hearsay rule to permit

the admission of the defendant's statements to the interpreter,

particularly where the reliability and trustworthiness concerns

implicit in Crawford are extant.

     Federal courts, in the absence of guidance from the United

States Supreme Court post-Crawford, have grappled with the issue

of a defendant's right to confrontation of an interpreter,

reaching different outcomes.6   The defendant relies on United


     6
       Prior to Crawford v. Washington, 541 U.S. 36 (2004), the
prevailing view was of an interpreter as a "mere language
conduit" for language and that the confrontation clause did not
apply. United States v. Nazemian, 948 F.2d 522, 528 (9th Cir.
1991), cert. denied, 506 U.S. 835 (1992). See United States v.
Beltran, 761 F.2d 1, 9 (1st Cir. 1985); United States v. Da
Silva, 725 F.2d 828, 832 (2d Cir. 1983). We question the
                                                                  15


States v. Charles, 722 F.3d at 1324-1325, in which the United

States Court of Appeals for the Eleventh Circuit concluded that

the defendant has a right to cross-examine an interpreter where

the interrogating officer testified to the English language

version of the defendant's Creole language statements because

the interpreter was the "declarant" of English language

statements.7   In Orm Hieng, 679 F.3d at 1139-1141, the United

States Court of Appeals for the Ninth Circuit, expressly

recognizing that Crawford may have changed the analysis for the

right of confrontation, nonetheless declined to depart from its

ruling in an earlier case that "a person may testify regarding

statements made by the defendant through an interpreter without

raising either hearsay or Confrontation Clause issues because

the statements are properly viewed as the defendant's own, and

the defendant cannot claim that he was denied the opportunity to

confront himself."   Orm Hieng, supra at 1139, citing Nazemian,

948 F.2d at 525-526.   The court held that there was no


validity of these earlier decisions inasmuch as they predate
Crawford and rely in large part on the reliability principles
that Crawford and its progeny deemed insufficiently protective
of a defendant's confrontation rights.
     7
       The court concluded, however, that it was not "plain"
error to admit the testimony without such cross-examination
because, prior to that decision, there was no binding circuit
precedent or "Supreme Court precedent clearly articulating that
the declarant of the statements testified to by the [Customs and
Border Protection] officer is the language interpreter." United
States v. Charles, 722 F.3d 1319, 1331 (11th Cir. 2013).
                                                                  16


confrontation clause issue because the analysis was the same for

hearsay and confrontation clause purposes.   Orm Hieng, supra at

1140-1141.

    We have not previously considered whether, for the purposes

of the confrontation clause, an interpreter is the "declarant,"

in which case the defendant would be entitled to the right of

confrontation, unless the witness is unavailable and the

defendant has had an opportunity for cross-examination.

Although the issue is significant for the development of our

criminal and constitutional jurisprudence, we decline to wade

into this thicket of unsettled constitutional principles where,

at least as concerns the Sixth Amendment, the Supreme Court has

not yet provided guidance, and where, in any event, it is

unnecessary to do so because we can decide the issue in this

case on State constitutional grounds.   See Commonwealth v.

Raposo, 453 Mass. 739, 743 (2009), quoting Commonwealth v.

Paasche, 391 Mass. 18, 21 (1984) ("We do not decide

constitutional questions unless they must necessarily be

reached").

    We are content to bypass the issue in this case because,

even if the defendant's confrontation rights attached to the

statements of the interpreter offered at trial, she has not

demonstrated a substantial risk of a miscarriage of justice.

Moreover, the procedure we announce infra, requiring, when
                                                                    17


practicable, the recording of a defendant's statement for which

an interpreter is employed, would satisfy future concerns about

reliability, such as those asserted by the defendant in this

appeal.

    Here, the defendant's statements to the police as reported

by the interpreter were not inculpatory on the central issue at

trial:    impairment.   The officer testified to the English-

language version of the following statements made by the

defendant through the interpreter:    (1) her nodding or saying

"Yes," in response to questions regarding whether the defendant

understood her rights, consented to the breathalyzer test, and

understood the instructions for taking the test; and (2) that

the defendant "was at a friend's house, her friend was

intoxicated so she decided to take the friend's car and drive

herself home.    She felt it was the right thing to do."8     The

defendant's explanation about why she was driving is not

relevant to the issue of impairment, nor is the verbal

acknowledgement that she understood her rights or consented to

take the breathalyzer test.     The defendant's affirmative

response to whether she understood the instructions regarding

    8
       When reviewing a challenge based on the confrontation
clause, we look to the statements made by, not the questions
posed to, the declarant. Davis v. Washington, 547 U.S. 813, 822
n.1 (2006) ("it is in the final analysis the declarant's
statements, not the interrogator's questions, that the
Confrontation Clause requires us to evaluate").
                                                                    18


the breathalyzer test is potentially relevant to the impairment

issue in that, if the jury believed that the defendant

understood the instructions, they could interpret the

defendant's failure to perform the test correctly either to mean

that the defendant was too impaired to properly follow the

directions or to suggest a consciousness of guilt.    In either

event, we conclude that this statement was not likely to affect

the result at trial because it was merely cumulative of properly

admitted evidence.    See Commonwealth v. Salcedo, 405 Mass. 346,

350 (1989).    The officer testified that the defendant

acknowledged her understanding by nodding her head up and down

after the interpreter verbally instructed her on how to perform

the test and he physically demonstrated the required actions.

    3.      Electronic recording of language interpreter services.

Although we reject the claim concerning the admission of the

interpreter's statements through testimony of the police

officer, it is appropriate to address the defendant's complaint

that our current procedure lacks a method for assessing the

reliability of an interpreter's translation of a defendant's

statements.    We now announce a new protocol to mitigate such

concerns.    Going forward, and where practicable, we expect that

all interviews and interrogations using interpreter services
                                                                     19


will be recorded.9    We have long recognized that recording

interviews and interrogations enhance reliability by providing a

complete version of a defendant's statements.    See Commonwealth

v. DiGiambattista, 442 Mass. 423, 441-442 (2004).    This new

protocol fits squarely in the line of cases recognizing the

value of recordings to the fairness of criminal proceedings, but

stopping short of requiring recordings for admissibility.      See

id. at 449.

     This protocol should not impose undue burden on police

departments.    We are advised by amicus, the Massachusetts Chief

of Police Association, Inc., that the use of telephonic language

interpreter services is a regular practice in several State

agencies.    Telephonic language services rely on interpreters

located in different States and different countries, and these

interpreters may not be always be available to testify at

trial.10    These services provide police officers the ability to


     9
       The defendant must be advised that the conversation is
being recorded. See Commonwealth v. Boyarsky, 452 Mass. 700,
705 (2008), citing Commonwealth v. Jackson, 370 Mass. 502, 507
(1976) ("A recording that is made with the actual knowledge of
all parties is not an interception, even if they have not
affirmatively authorized or consented to it). Cf. G. L. c. 272,
§ 99 (B) (4), (C) (1) (prohibiting secret recordings). Any
statements made by a defendant after being advised of the
recording are deemed to be made with consent to the recording.
     10
       Several police departments, including the Stoughton
police department use LanguageLine Solutions. LanguageLine
Solutions advertises available positions for interpreters in ten
                                                                   20


communicate with speakers of many different foreign languages in

a prompt and efficient manner.11   Police departments record

interviews regularly at station houses and, as here, the use of

these services often takes place at the station.   In those

circumstances, all that would be required is for police to

conduct the speakerphone translation in a room equipped for

recording and to engage the recording equipment.   Thus, it will

be the rare case where the police will be unable to record the

interview.

     The implementation of this protocol will provide

significantly enhanced protections and assurances of reliability

for defendants who speak through an interpreter.   Reliability is

an essential factor of due process to the defendant.    See

Commonwealth v. Camblin, 471 Mass. 639, 648-649 (2015), quoting

Commonwealth v. Given, 441 Mass. 741, 747 n.9, cert. denied, 543

U.S. 948 (2004) ("due process demands that evidence be reliable

in substance").   A recording allows defendants and judges to

independently evaluate accuracy, and thus, the reliability of


countries. See LanguageLine Solutions, Interpreter Careers,
https://www.languageline.com/careers/interpreters-overview
[https://perma.cc/G8G4-QUUJ].
     11
       LanguageLine advertises that it employs "professional
interpreters fluent in 240+ languages" and can connect a
telephone caller "within seconds," any time of any day, to an
interpreter. See LanguageLine Solutions, Phone Interpreting,
https://www.languageline.com/interpreting/phone
[https://perma.cc/R73E-QYLK].
                                                                   21


interpreter services.    See Commonwealth v. Portillo, 462 Mass.

324, 332 (2012).   That reliability is further enhanced by

application of the rule in Portillo, supra, requiring the

Commonwealth to provide the defendant with a translated

transcript of a recording containing foreign-language statements

that it intends to use as evidence.

    Additionally, this protocol will provide a method to

determine whether the confrontation clause applies at all.

"Crawford 'does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter

asserted.'"   Commonwealth v. Greineder, 464 Mass. 580, 590,

cert. denied, 134 S. Ct. 166 (2013), quoting Williams v.

Illinois, 132 S. Ct. 2221, 2235 (2012).    If we had not concluded

that the interpreter was acting as the defendant's agent for

hearsay analysis, we would have reviewed the purpose for which

the statements were offered as part of our determination as to

whether the testimony violated the hearsay rules or

confrontation clause.    See Commonwealth v. Pytou Heang, 458

Mass. 827, 854 (2011), quoting Commonwealth v. Hurley, 455 Mass.

53, 65 n.12, (2009) (confrontation clause and hearsay analysis

depends on whether statement is "offered to prove the truth of

the matter asserted").   Here, the Commonwealth introduced the

officer's testimony of those statements, as translated by the

interpreter, for their truth.   Indeed, the relevancy of the
                                                                 22


officer's testimony in this regard was dependent upon the jury

accepting the accuracy of the translation.   See generally

Commonwealth v. Jones, 472 Mass. 707, 714 (2015) (reviewing

relevancy of out-of-court statements).   If, however, the

translation was not accurate, the statements would not be

introduced for their truth.   Along with providing a method to

gauge reliability, a recording of the translation provides an

independent basis to evaluate the truth of the testimony for

purposes of determining the applicability of the confrontation

clause.

    In this appeal, the defendant does not quarrel with the

actual translation provided by the interpreter.   Rather, she

claims only that the translation may not be reliable or accurate

because of her asymmetric relationship with the police and the

prosecutor.   Although the availability of a recording and a

transcript of the interview in this case would have allowed

defense counsel to address any issues with the accuracy of the

translation in advance of trial, see Portillo, supra, we discern

no basis on this record to conclude that the translation was not

reliable or accurate.

    4.    Sufficiency of the evidence.   The defendant argues that

the judge erred in denying her motion for a required finding of

not guilty.   We review a claim of sufficiency of the evidence

under the oft-repeated Latimore standard, viewing the evidence
                                                                     23


in the light most favorable to the Commonwealth.      Commonwealth

v. Latimore, 378 Mass. 671, 676-677 (1979).      "[T]he evidence and

the inferences permitted to be drawn therefrom must be 'of

sufficient force to bring minds of ordinary intelligence and

sagacity to the persuasion of [guilt] beyond a reasonable

doubt.'"   Commonwealth v. Semedo, 456 Mass. 1, 8 (2010), quoting

Latimore, supra at 677.   It is for the jury to assess the weight

and credibility of the evidence.    Commonwealth v. Forte, 469

Mass. 469, 481 (2014).    There was no error.

    To obtain a conviction of operating a vehicle while

intoxicated, the Commonwealth must prove that the defendant (1)

physically operated a vehicle; (2) "on a public way or place to

which the public has a right of access; and (3) had a blood

alcohol content percentage of .08 or greater or was impaired by

the influence of intoxicating liquor."    Zeininger, 459 Mass. at

778, citing G. L. c. 90, § 24 (1) (a) (1).      Only the third

element is in dispute here.    To establish that the defendant was

under the influence, the Commonwealth must prove a diminished

capacity to operate safely.    Commonwealth v. Jewett, 471 Mass.

624, 635-636 (2015), quoting Commonwealth v. Connolly, 394 Mass.

169, 173 (1985).

    The Commonwealth presented sufficient evidence of

diminished capacity.   Specifically, a driver who followed the

defendant for ten to twelve minutes testified to her erratic
                                                                      24


driving:     swerving, straddling the solid-double center line, and

crossing the fog lines approximately twenty times.     The police

officer testified to the odor of alcohol coming from the

defendant, slurred speech, unsteadiness when standing, and

glassy eyes.     These characteristics are evidence supporting a

finding of impaired driving.     See Jewett, 471 Mass. at 636.     See

also Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507

(2011) (describing "obvious signs of . . . intoxication [slurred

speech, belligerent demeanor, strong odor of alcohol, poor

balance, and glassy, bloodshot eyes]"); Commonwealth v.

Reynolds, 67 Mass. App. Ct. 215, 218-219 (2006) (swerving in

good road conditions supports finding of diminished capacity).

Although the defendant minimizes the effect of this evidence --

asserting that she was an "inexperienced" driver, but not

impaired -- the assessment of the weight and credibility of the

evidence was properly left to the jury.      Forte, 469 Mass. at

481.

       5.   Jury instructions.   Last, the defendant challenges the

omission of certain words during three portions of the jury

instructions.     Because the defendant did not object, we review

this claim to determine if it created a substantial risk of a

miscarriage of justice.     Commonwealth v. Alphas, 430 Mass. 8, 15

(1999).     "Jury instructions must be construed as a whole to

prevent isolated misstatements or omissions from constituting
                                                                     25


reversible error where there is little chance that the jury

would have misunderstood the correct import of the charge."

Commonwealth v. Oliveira, 445 Mass. 837, 844 (2006), citing

Commonwealth v. Owens, 414 Mass. 595, 607 (1993).

    The record reflects that the judge omitted words from the

model jury instructions in three instances.    First, when

instructing on the presumption of innocence, the judge should

have said, "It requires you to find the defendant not guilty

unless," but he omitted "not guilty."   See Instruction 2.160 of

the Criminal Model Jury Instructions for Use in the District

Court (2009).   Second, when instructing on credibility of

witnesses, the judge said, "You should give the testimony of

each witness whatever degree you believe and what you judge it

is fairly entitled to receive," where the model instruction

reads, "You should give the testimony of each witness whatever

degree of belief and importance that you judge it is fairly

entitled to receive."   See Instruction 2.260 of the Criminal

Model Jury Instructions for Use in the District Court.       Last,

the judge omitted the words "a reasonable" from the following

sentence in the reasonable doubt instruction:    "That is what we

mean by proof beyond a reasonable doubt."     See Instruction 2.180

of the Criminal Model Jury Instructions for Use in the District

Court.
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    Each of these omissions is properly characterized as a

"slip of the tongue" and was not likely to mislead the jury

where the charge as a whole properly conveyed the instructions.

See Commonwealth v. Grant, 418 Mass. 76, 84 (1994).

Accordingly, the jury instructions did not create a substantial

risk of a miscarriage of justice.

                                    Judgment affirmed.
