Commonwealth v. Swanson
Commonwealth v. Swanson
Opinion of the Court
At the probation revocation hearing, one probation officer, Cahill, testified
Because the judge specifically found the defendant in violation even without considering Cahill’s testimony that Jaeger administered two breathalyzer tests to the defendant on the morning of November 24, 2009, we need not consider whether the test results (readings of .188 and .192) were admissible.
We note, however, that there was no evidence (hearsay or otherwise) as to the type of breathalyzer used, its maintenance and calibration, the procedures employed by Jaeger, or her training in the use of such equipment, even though these were live issues at the hearing. The Commonwealth elicited no such evidence on direct examination of Cahill, and when questioned by defense counsel on cross-examination, Cahill had no knowledge on these topics. On the view we take of the case, we need not decide whether the foundational requirements established by G. L. c. 90, § 24K, and 501 Code Mass. Regs. §§ 2.00 et seq. (2010) apply in probation revocation hearings as they do in criminal prosecutions for driving under the influence. Nevertheless, without implying that they do, we think the judge was appropriately cautious in not relying upon the breathalyzer test results in these circumstances.
Order revoking probation affirmed.
Contrary to the defendant’s position, it was not error for the judge to credit and find fully reliable Cahill’s hearsay testimony of Jaeger’s account of events. See generally Commonwealth v. Durling, 407 Mass. 108, 118 (1990).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.