(concurring). I agree wholeheartedly with much of the majority’s well-crafted decision, and in particular, I agree that, in light of the Commonwealth’s theory of the case, there was error with regard to those convictions that depended on the defendant’s having operated his vehicle under the influence (OUI convictions). I respectfully disagree on whether that error so prejudiced the defendant as to warrant reversal of the OUI convictions, and I join in that disposition only because I believe it is mandated by an earlier decision of this court. See Commonwealth v. Douglas, 75 Mass. App. Ct. 643, 653 (2009).
Because the defendant did not preserve his claim of error, we are left to consider only whether the error created “a substantial risk of a miscarriage of justice.” For that standard to be met, there has to be “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). “Errors of this magnitude are extraordinary events and relief is seldom granted.” Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), citing Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997). “In analyzing a claim under the substantial risk standard, ‘[w]e review the evidence and the case as a whole.’ ” Ibid., quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
The error at issue here was revealed by the Supreme Judicial Court’s ruling in Commonwealth v. Colturi, 448 Mass. 809, 817-818 (2007), which was issued after the defendant’s trial concluded. That decision also made plain that, as a result of a 2003 legislative amendment, the Commonwealth can now establish a “per se” OUI violation by demonstrating that a defendant had a blood alcohol content of .08 or higher. The jury had before it the defendant’s .09 breathalyzer result, which the *26defendant did not demonstrate (or even argue) was inaccurate. The test was administered many hours after the incident, but the Commonwealth presented expert testimony that the defendant’s blood alcohol would have measured significantly higher at the relevant time.
In this manner, and through other evidence as well, the Commonwealth provided the jury with overwhelming proof that the defendant violated the OUI statute, even if it stumbled by failing to request a set of instructions that fully took advantage of that proof. Had the jury received full and proper instructions in accordance with the principles enunciated in Commonwealth v. Colturi, supra, then I believe that — far from there being “serious doubt whether the result of the trial might have been different” — there is a near certainty that the jury would have come out the same way it did. Under these circumstances, I have difficulty discerning any substantial risk that justice miscarried, and I would be inclined to affirm all the convictions. I nevertheless concur in reversing the OUI convictions because I believe our decision is controlled by Commonwealth v. Douglas, 75 Mass. App. Ct. at 653 (substantial risk of miscarriage of justice found under very similar circumstances).