From time to time, the admissibility of an individual's alcohol
or drug consumption is pertinent to the case. This article
discusses some of the circumstances in which alcohol and drug
evidence arises in civil cases and related admissibility
In Massachusetts, evidence of drug or alcohol use is permitted
at trial under a wide variety of circumstances. As with all
evidence, however, to introduce evidence of the use of drugs and/or
alcohol, several criteria of admissibility must be met. First and
foremost, the evidence must be relevant. It must have a "rational
tendency to prove an issue in the case." Commonwealth v.
Fayerweather, 406 Mass. 78, 83 (1989). Once you clear this
hurdle, review your admissibility options.
Evidence of the effect of alcohol or drug consumption may come
in various forms. Interestingly, a layperson may provide an opinion
about the sobriety of another person. Commonwealth v.
Orben, 53 Mass. App. Ct. 700, 704 (2002). The fact that the
basis for the opinion is a telephone conversation with a defendant,
rather than actual physical observation or a person-to-person
conversation, goes to the weight and not to the admissibility of
the testimony. Id. Witnesses may testify to the
individual's conduct - e.g., "staggering" and "drunk." Murphy
v. Moore, 314 Mass. 731 (1943). See also, Martin v.
Florin, 273 Mass. 13 (1930) (allegedly intoxicated individual
permitted to testify concerning the effects of alcohol on him).
Doctors may testify to the smell (or lack thereof) of alcohol on
the person's breath. Id; See also Commonwealth v. Orben,
53 Mass. App. Ct. 700 (2002) (police can testify as to state of
Evidence of a plaintiff's drug or alcohol use also can be
admitted into evidence through a plaintiff's medical records. In
Commonwealth v. Beatty, 73 Mass. App. Ct. 1125 (2009), the
court found a portion of the defendant's medical records - which
indicated the defendant admitted "he was intoxicated and does not
recall any events" - admissible pursuant to G.L. c. 233, §79. That
case involved prosecution for operating under the influence of
alcohol. The defendant attempted to preclude the admission of the
relevant statement on the grounds that it did not "relate to [his]
treatment and medical history" as the statute required and because
it referenced "the question of liability." Id. at *1.
The court found, however, that where the defendant was seeking
treatment for symptoms including headache and vomiting, information
about his recent alcohol consumption was relevant to his medical
care, and therefore, that his admission contained in the medical
record was admissible. Id. Similarly, in Leonard v.
Boston Elevated Railway, 234 Mass. 480 (1920), one of the
plaintiff's medical records contained the words, "odor of alcohol
on the breath," and the court ruled that these records were
admissible. In so holding pursuant to G.L. c. 233, §79, the court
… 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.
Id., at 483.
The court also stated that it was unable, as a matter of law, to
say that the words "odor of alcohol on the breath" could not relate
to the plaintiff's medical history. Id., see also, Commonwealth
v. Dube, 413 Mass. 570 (1992).
Medical records referencing otherwise relevant information,
however, will be precluded where they are unreliable. In
Commonwealth v. Johnson, for instance, the records
themselves contained a disclaimer regarding the reliability of the
subject test. 59 Mass. App. Ct. 164 (2003). The court held that the
trial court's admission of the records regarding the test,
therefore, was an error. Id.
Additionally, otherwise admissible records must, where
appropriate, be redacted in part. Thus, a trial judge properly
ordered deleted from the decedent's hospital records the fact that
the decedent was apparently a recovering alcoholic because this
evidence had no relevance to whether the decedent was intoxicated
at the time of the accident. Commonwealth v. Shine, 25
Mass. App. Ct. 613 (1988).
Expert testimony concerning pharmacology
Experts are at times called to testify concerning the
pharmacology of alcohol, and the expected effects of specific
levels of alcohol on an individual, based on some explanation
relating to consumption and "burn-off." Assuming the expert can be
qualified, the following summarizes basic pharmacological
principles the expert may be called upon to testify.
Alcohol, like all drugs, undergoes four scientific processes in
the human body. These four processes take place at the same time
until such time as all of the alcohol has been absorbed by the
gastrointestinal tract and all of the alcohol has been metabolized.
Vijay A. Ramchandani, Ph.D., Alcohol: Neurobiology and
The first process is absorption. Absorption is the process by
which alcohol is made available to the fluids of distribution of
the body, such as blood, plasma, serum, etc. About 80 percent of
orally consumed alcohol is absorbed from the small intestines with
the rest absorbed from the stomach. On an empty stomach, more than
half of the alcohol consumed will be absorbed within 15 minutes and
a maximum blood level will occur in about 20 minutes, with 80 to 90
percent complete absorption occurring within 30 to 60 minutes. The
rate of alcohol absorption depends on many factors, including the
rate of consumption, how much is consumed, the alcohol's
concentration, the presence of carbonation in the drinks, food in
the stomach, and whether the person is taking any medications that
can interfere with the gastrointestinal tract. Charles E. Becker,
The Clinical Pharmacology of Alcohol, Calif. Med.
V.113(3), pgs. 37-45 (Sept. 1970); David M. Benjamin, Ph.D.,
Understanding the Pharmacology of Ethanol, www.doctorbenjamin.com.
The second process is distribution. Once alcohol has been
absorbed from the gastrointestinal tract into the blood, it is
circulated to all areas of the body to which there is blood flow.
This process takes time. Charles E. Becker, The Clinical
Pharmacology of Alcohol.
The third process is metabolism. To ultimately remove alcohol
from the body, it must first be inactivated. This is initiated by
altering the alcohol's chemical structure into a substance that is
more easily excreted by the body, and is often referred to as
detoxification. Alcohol is metabolized in the liver by the enzyme
dehydrogenase into acetaldehyde, which causes dilation of blood
vessels. It is this dilation that is responsible for hangovers.
Vijay A. Ramchandani, Ph.D., Alcohol: Neurobiology and
The acetaldehyde is next metabolized by the enzyme aldehyde
dehydrogenase into acetate, which is very similar to vinegar.
Measurement of blood serum acetate levels may be an indicator of
problem or chronic drinking. Charles E. Becker, The Clinical
Pharmacology of Alcohol; Vijay A. Ramchandani, Ph.D.,
Alcohol: Neurobiology and Pharmacology.
Certain drugs can inhibit the aldehyde dehydrogenase enzyme
responsible for the second step in metabolizing alcohol, and
inhibition of this enzyme causes an increase in blood acetaldehyde
levels. One of these drugs is antabuse, which is often used to
treat alcoholics. People taking antabuse can become very sick from
consuming even a small amount of alcohol. Other such drugs include
chloral hydrate and oral anti-diabetic drugs such as Diabinese.
David M. Benjamin, Ph.D., Understanding the Pharmacology of
The fourth and final process is excretion. The kidneys and lungs
excrete only 5 to 10 percent of unmetabolized alcohol. The rest
must be metabolized before excretion. Determination of the rate of
alcohol excretion can be effectively measured once all of the
alcohol in a person's gastrointestinal tract has been absorbed.
Once this occurs, blood level determinations should show a decline
with time. Alcohol's effect on a person is greater when his or her
blood alcohol level is rising than when it is falling. In most
people, the excretion rate ranges from about 0.01 to 0.025 percent
per hour. Charles E. Becker, The Clinical Pharmacology of
Only air in the deepest portion of the lungs is in equilibrium
with blood alcohol. As such, the amount of alcohol in the lungs of
a person taking a breathalyzer test is very small. Because this
amount varies among individuals, breath tests may overestimate
blood alcohol levels. David M. Benjamin, Ph.D., Understanding
the Pharmacology of Ethanol.
One rule of thumb regarding blood alcohol concentrations is that
one mixed drink will produce a peak blood alcohol level of 0.02
percent in a 150-pound man. The level is lower for wine and beer.
If a person is eating while consuming alcohol, the peak blood
alcohol concentration would be lower and take longer to reach. The
average "burnoff" rate of alcohol is 0.017 percent per hour,
leading to the old adage that you can consume about one drink per
hour without getting drunk. Charles E. Becker, The Clinical
Pharmacology of Alcohol; David M. Benjamin, Ph.D.,
Understanding the Pharmacology of Ethanol.
Based on the burnoff rate, it is possible to estimate a person's
blood alcohol concentration at an earlier time based on a known
blood alcohol concentration at a later time. Since the burnoff rate
ranges from 0.01 to 0.025 percent per hour, one can generate a
range within which a person's true blood alcohol concentration at a
certain earlier time would have fallen. Charles E. Becker, The
Clinical Pharmacology of Alcohol.
In Commonwealth v. Smith, 35 Mass. App. Ct. 655 (1993),
the court discussed the admissibility of expert testimony as to
what an individual's blood alcohol level at the time of an incident
must have been. This evidence, known as "retrograde extrapolation
evidence," is based on the rate at which alcohol is metabolized and
the individual's blood alcohol level measured at a specific time
following the incident. The court stated that this type of
evidence, provided it was admitted via a scientifically acceptable,
reliable method, might logically be thought to be of assistance to
a jury. Id., see also, Commonwealth v. Cruz, 413 Mass.
686, 698 (1992), and Commonwealth v. Sargent, 24 Mass.
App. Ct. 657, 658-659 (1987). The court also noted that a number of
other jurisdictions have admitted retrograde extrapolation
evidence. Id. (citations omitted).
Statutory blood alcohol concentration levels are not scientific
standards. Alcohol affects different people in different ways. Two
people may consume the same amount of alcohol in the same amount of
time and under the same circumstances, and one may show no outward
signs of intoxication whatsoever even with a blood alcohol level
above the statutory level, while the other may show signs of
intoxication with a blood alcohol level well below the statutory
level. Charles E. Becker, The Clinical Pharmacology of
Regardless of the source of a blood alcohol concentration
measurement, there will always be some variability in the procedure
used. For this reason, two readings are done for breathalyzers and
control standards are used. For breathalyzers, one critical control
standard is a blank sample that contains no alcohol, and a second
is a positive control standard, or calibration test, which is
usually at 0.15 percent or 0.20 percent. A breathalyzer test result
which has not been "run against a blank" and which did not include
a positive control standard is not scientifically valid. In
addition, the chemical solutions used in a breathalyzer must be
fresh to be accurate. David M. Benjamin, Ph.D., Understanding
the Pharmacology of Ethanol.
Alcohol and drug evidence is often something that catches a
jury's interest. General admissibility, pharmacology and expert
testimony are all matters to consider when assessing the import of
Michael P. Sams is a member in
Boston-based Kenney & Sams PC, concentrating in the areas of
business litigation, construction law and insurance law. He
regularly lectures on litigation practice. Sams chaired
Massachusetts Continuing Legal Education's 2005 and 2008
presentations on public construction law reform, served on its
deposition workshop faculty from 1999-2005, and chaired MCLE's
Taking Depositions with Confidence in 2009.