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Massachusetts Appeals Court Summary Dispositions Pursuant to Rule 23.0 (formerly Rule 1:28)

Docket Number - 24-P-1394main content

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COMMONWEALTH vs. KEVIN A. LARA.
2/12/2026
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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.
2
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.
1
Our review of the denial of the defendant's motion to
suppress is confined to the judge's findings bearing on that
issue, as not all trial evidence was introduced at the
suppression hearing.
2
In fact, Lowell Street and Moody Street run parallel to
each other, one block apart.
3
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
4
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
5
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
6
'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,
7
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
8
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
9
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.
10
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)
11
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).
12
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.