Commonwealth v. Kevin A. Lara.

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

24-P-1394

COMMONWEALTH

vs.

KEVIN A. LARA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Waltham Division of the

District Court Department, the defendant, Kevin Lara, was

convicted of operating a motor vehicle with a blood alcohol

level of .08 percent or greater, second offense, in violation of

G. L. c. 90, § 24 (1) (a) (1), and operating without an ignition

interlock device (IID), in violation of G. L. c. 90, § 24S (a).

On appeal, the defendant argues that the judge erred in denying

his motion to suppress evidence obtained as a result of the

vehicle stop and subsequent breathalyzer test. He also contends

that the evidence was insufficient to prove operation without an

IID. We affirm.
Background. We summarize the evidence presented at the

motion hearing and the trial.1 Shortly after 9 P.M. on November

20, 2022, Detective McMeekin was dispatched to the area of 92

Lowell Street, in Waltham, to respond to a potential hit-and-

run.

An identified 911 caller reported that a black Jeep struck

a white pickup truck near 92 Lowell Street and was traveling

towards Moody Street.2 Detective McMeekin was already patrolling

in that neighborhood and began scanning the area for dark-

colored Jeeps. There was very light traffic in that area at the

time.

As he was driving south on Lowell Street, toward 92 Lowell

Street, Detective McMeekin saw a dark-colored vehicle driving

towards him with its headlights off. That vehicle's headlights

turned on after a few moments, and Detective McMeekin noted that

they were the distinctive, circular-shaped lights found on a

Jeep Wrangler or Gladiator. He also noticed that two headlights

were illuminated on the driver's side, but only one on the

passenger's side.

Our review of the denial of the defendant's motion to
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suppress is confined to the judge's findings bearing on that
issue, as not all trial evidence was introduced at the
suppression hearing.

In fact, Lowell Street and Moody Street run parallel to
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each other, one block apart.

2
Soon after driving past that Jeep, Detective McMeekin

arrived at 92 Lowell Street and observed a white pickup truck

parked on the northbound side of the road. The truck had damage

to its back end consistent with having been struck by a vehicle

traveling north on Lowell Street. Detective McMeekin then

called another officer to respond to the scene and drove off in

pursuit of the Jeep he had just seen driving north on Lowell

Street.

The detective drove north on Lowell Street. At the

intersection of Lowell and Pine Streets, he noticed a dark Jeep

driving west on Pine Street and believed that it may have been

the same vehicle he had just seen. He turned left and began

following the Jeep west on Pine Street. As the Jeep turned left

onto Moody Street, the detective noticed that it was missing its

front right fender, which was consistent with (1) the missing

headlight on the passenger's side of the Jeep he had seen

earlier, and (2) the damage to the rear of the white pickup. At

this point, Detective McMeekin executed a traffic stop near the

Moody Street fire station. He executed the stop less than six

minutes after receiving the dispatch.

Detective McMeekin approached the Jeep, confirmed that

there was damage to the front of the vehicle, and identified the

driver as the defendant. The detective noticed a large piece of

plastic in the front passenger seat of the Jeep, which he

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believed to be the missing fender. Detective McMeekin noticed

that the defendant had bloodshot, glassy eyes, and that there

was an odor of alcoholic beverage emanating from the Jeep. When

asked if he had been drinking, the defendant reported, in

somewhat slurred speech, having had two beers earlier that

evening.

The defendant handed his driver's license to Detective

McMeekin and stated that he believed his license was suspended.

Detective McMeekin noticed that the license had a "T"

restriction, meaning that the defendant was required to drive a

vehicle equipped with an IID. The Jeep was not equipped with an

IID. The defendant informed another officer who had responded

to the scene that he was driving his wife's car that evening

because it did not have an IID. The defendant then failed two

field sobriety tests and was placed under arrest.

At the police station, the defendant agreed to take a

breathalyzer test. Sergeant Florio was the booking officer and

administrated the test. Procedure requires a fifteen-minute

observation period before administering a breathalyzer test, to

make sure that the arrestee is not burping or otherwise

regurgitating, which could introduce additional alcohol into

their mouth and skew the results of the test. See 501 Code

Mass. Regs. § 2.13 (2016). Sergeant Florio testified that the

defendant touched his face at some point during the observation

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period, but that he did not see the defendant introduce anything

into his mouth or "vomit" anything. The test result indicated

that the defendant had a blood alcohol concentration of .22

percent.

The defendant filed a motion to suppress the evidence

obtained from the traffic stop and the results of his

breathalyzer test. A judge denied the motion after a two-day

evidentiary hearing. At trial, the jury found the defendant

guilty of operating under the influence and operating without an

IID. The defendant timely appealed his convictions.

Discussion. 1. Motion to suppress. a. Motor vehicle

stop. The defendant argues that the judge erred in denying his

motion to suppress evidence obtained from the motor vehicle stop

because Detective McMeekin lacked the individualized suspicion

required to support the stop. Specifically, he contends that

because he was driving in a different direction than the 911

caller reported, the police lacked reasonable suspicion that he

had committed the hit-and-run on Lowell Street. We disagree.

"In reviewing a decision on a motion to suppress, we accept

the judge's subsidiary findings of fact absent clear error but

conduct an independent review of [the] . . . ultimate findings

and conclusions of law" (quotations and citation omitted).

Commonwealth v. Goncalves-Mendez, 484 Mass. 80, 83 (2020). "An

investigatory stop is justified under art. 14 if the police have

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'reasonable suspicion, based on specific, articulable facts and

reasonable inferences therefrom, that an occupant of the . . .

motor vehicle had committed, was committing, or was about to

commit a crime.'" Commonwealth v. Depiero, 473 Mass. 450, 453-

454 (2016), quoting Commonwealth v. Alvarado, 423 Mass. 266, 268

(1996).

"Reasonable suspicion does not require a full match-up of

all parts of the description" (quotation and citation omitted).

Commonwealth v. Lopes, 455 Mass. 147, 158 (2009). "Police 'must

be allowed to take account of the possibility that some

descriptive facts supplied by victims or witnesses may be in

error.'" Id. at 158-159, quoting Commonwealth v. Emuakpor, 57

Mass. App. Ct. 192, 198 (2003).

"When, as here, a police radio broadcast directs officers

to make an investigatory stop of a motor vehicle, the stop is

lawful only if the Commonwealth establishes both the indicia of

reliability of the transmitted information and the particularity

of the description of the motor vehicle." Lopes, 455 Mass. at

155. "To establish that the transmitted information bears

adequate indicia of reliability, the Commonwealth must show the

basis of knowledge of the source of the information (the basis

of knowledge test) and the underlying circumstances

demonstrating that the source of the information was credible or

the information reliable (veracity test)." Id. at 155-156,

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citing Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985).

"Independent police corroboration may make up for deficiencies

in one or both of these factors." Commonwealth v. Lyons, 409

Mass. 16, 19 (1990).

Here, an identified 911 caller had reported their personal

observation that a black Jeep hit a white pickup truck, on

Lowell Street, and was traveling towards Moody Street, at

approximately 9 P.M. This information "more than satisfied both

the basis of knowledge test and the veracity test." Lopes, 455

Mass. at 155.

The fact that the detective first saw the defendant's Jeep

driving north on Lowell Street, rather than west "towards Moody

Street," as the caller reported, did not negate the detective's

reasonable suspicion that the defendant's Jeep was involved in

the accident. To the contrary, the fact that the defendant was

driving north on Lowell Street, away from the area of the

accident, within minutes after 911 call, supported a reasonable

suspicion that he was involved in the accident. See Lopes, 455

Mass. at 158-159. This is especially true where traffic was

light at 9 P.M., the defendant was driving the only Jeep in the

area, the color of the Jeep matched the caller's report, and

Detective McMeekin observed that the Jeep's right front

headlight was damaged, consistent with the location of the

damage on the rear of the white pickup truck. These

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observations provided sufficient "particularity of the

description of the motor vehicle" involved in the accident.

Lopes, supra at 155. In sum, Detective McMeekin's independent

corroboration of the 911 caller's descriptive facts was

sufficient to support an individualized suspicion that the

defendant's Jeep struck the white pickup truck and then left the

scene. See Lyons, 409 Mass. at 19. Accordingly, the stop of

the defendant's Jeep was reasonable and the motion to suppress

evidence obtained from the stop was properly denied.

b. Breathalyzer test. The defendant argues that the judge

erred in denying his motion to suppress the breathalyzer test

results because the police did not substantially comply with the

regulations for properly administering the test. We disagree.

The defendant likens his case to Commonwealth v. Pierre, 72

Mass. App. Ct. 230 (2008), where we affirmed a judge's finding

that an officer substantially deviated from the fifteen-minute

observation procedure required by the testing regulations. "The

purpose of the fifteen-minute waiting period is to ensure that

the defendant has not brought any substance into his mouth, such

as food, drink, or regurgitation by burping or by hiccoughing,

that would have had a contaminating impact on the accuracy of

the results, and to permit a sufficient lapse in time to allow

such possible contaminants to clear." Pierre, supra at 231-232.

In Pierre, the administering officer did not testify about

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what he observed during the waiting period, including whether or

not he noticed a "contaminating event." 72 Mass. App. Ct. at

233. That officer also described the fifteen-minute period as a

"waiting period for the breathalyzer to warm up," rather than a

period where he was responsible for observing the defendant.

Id. This court noted that, although in the vast majority of

cases this sort of weakness in evidence would typically go to

weight and not admissibility, the errors in Pierre were

significant enough to render the results of the breath test

inadmissible. Id. at 235.

Here, the defendant focuses on an officer's testimony that

he saw the defendant touch his face a few times during the

waiting period. But that same officer explicitly testified that

he did not witness the defendant put anything into his mouth or

vomit. This is markedly different from the situation in Pierre,

where the officer administering the test did not closely observe

the defendant during the waiting period and could not say

whether there had been a contaminating event. See Pierre, 72

Mass. App. Ct. at 233. As such, the judge did not err in

finding that the officers substantially complied with the

fifteen-minute observation procedure required by 501 Code Mass.

Regs § 2.13. Accordingly, we discern no error in her denial of

the defendant's motion to suppress the test results.

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2. Operating without IID charge. a. Sufficiency. The

defendant argues that the judge erred in denying his motion for

a required finding of not guilty on the IID charge, because

"ambiguous evidence" regarding the status of his driver's

license on the date of the arrest required that the jury

speculate as to an essential element of the crime. We disagree.

Because "a license simply cannot be both restricted and

[suspended] at the same time," the defendant presented evidence

that his license was merely suspended, as an affirmative

defense. Commonwealth v. Pettit, 83 Mass. App. Ct. 401, 404

(2013). Specifically, the defendant relied on his own hearsay

statement during the traffic stop, elicited through Detective

McMeekin on cross-examination, that he believed his license was

suspended, and a document from the registry of motor vehicles

(RMV) showing that his license was suspended nine days after the

traffic stop.

A sufficiency argument requires us to view the evidence in

the light most favorable to the Commonwealth. Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979). Evidence is

insufficient to support a conviction when "an essential element

of the crime" is left "entirely to conjecture or surmise." Id.

at 678. In order to convict the defendant for failure to have

an IID in violation of G. L. c. 90, § 24S (a), the Commonwealth

was required to prove (1) that he operated a motor vehicle; (2)

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that he did so on a public way; (3) that the motor vehicle he

drove was not equipped with a functioning IID; and (4) that his

license was restricted to operating only vehicles with such a

device. Criminal Model Jury Instructions for Use in the

District Court, Instruction 5.520 (2014). The evidence

established that the defendant had a restricted license at the

time of his arrest. Furthermore, the only potential evidence of

suspension was the defendant's own, uncorroborated,3 hearsay

statement.4 In the light most favorable to the Commonwealth, the

jury was free to reject his claim. As such, the judge did not

err in denying the defendant's motion for a required finding of

not guilty.

b. Jury instruction. Furthermore, the defendant did not

present sufficient evidence to adequately raise an affirmative

3 We do not agree with the defendant's characterization of
this RMV evidence as probative of a claim that his license was
suspended on November 20, 2022. The document merely establishes
that his license was suspended when the document was printed (on
November 29, 2022) and is not probative of whether his license
was suspended on November 20, 2022. Indeed, the fact that the
defendant failed a breathalyzer test on November 20, 2022,
triggered an automatic thirty-day administrative suspension of
his license, which was in effect on November 29, 2022. See
G. L. c. 90, § 24 (1) (f) (2).

4 A defendant's own out-of-court statement is inadmissible
hearsay when it is offered by the defendant, rather than the
Commonwealth, and for its truth. See Commonwealth v. McCowen,
458 Mass. 461, 485-486 (2010); Mass. G. Evid. § 801(d)(2)
(2025).

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defense, so the judge did not abuse her discretion in declining

to instruct the jury that a license cannot be suspended and

restricted at the same time. See Commonwealth v. Byung-Jin

Kang, 91 Mass. App. Ct. 182, 184-185 (2017). "[A] defendant

ultimately 'is not entitled to a charge on a hypothesis which is

not supported by the evidence,'" and "[b]are, uncorroborated

hearsay . . . will not suffice to adequately raise [an

affirmative] defense, and thereby will not entitle a defendant

to a jury instruction." Id. at 185, quoting Commonwealth v.

Monico, 373 Mass. 298, 299 (1977). Accordingly, we discern no

error in the judge's denial of the defendant's request for such

an instruction.

Judgments affirmed.

By the Court (Meade,
Desmond & Wood, JJ.5),

Clerk

Entered: February 12, 2026.

5 The panelists are listed in order of seniority.

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