The Massachusetts Appeals court recently allowed the testimony by the arresting officer of a defendants inability to take the breathalyzer in COMMONWEALTH vs. JAMES M. CURLEY 78 Mass. App. Ct. 163. Often the defendant will “play games” with the breathalyzer such as sucking instead of blowing, not blowing at all ect all while feigning ignorance at why its not working. Clearly the court “got it” when looking at someone who is simply trying to play both sides and take the test so not to produce the longer license suspension (thank you Melanies law) while not having a result produced.
The court in deciding the case stated “At the trial of a criminal complaint charging operation of a motor vehicle while under the influence of intoxicating liquor in violation of G. L. c. 90, § 24(1)(a)(1), the admission in evidence of the defendant’s failed efforts to take a breathalyzer test did not violate his constitutional right against self-incrimination, where the defendant did not refuse to take the breathalyzer test but, instead, signed a form indicating that he consented to the test, with the result that the following series of physical actions (which, the Commonwealth alleged, demonstrated that the defendant was trying to avoid giving a sample while appearing to try to take the test) were properly the subject of the observing officer’s testimony.
Discussion. The defendant argues that admitting evidence of his failed breathalyzer attempts violated his right against self-incrimination because the failed attempts were tantamount to a refusal, citing Opinion of the Justices, 412 Mass. 1201 , 1210-1211 (1992).
It is well settled that evidence of a defendant’s refusal to take a chemical breath test offered by a police officer is not admissible against him in a trial for operating under the influence of intoxicating liquor. See Opinion of the Justices, 412 Mass. at 1211, where the court reasoned that “such refusal evidence is both compelled and furnishes evidence against oneself . . . [and] therefore would violate the privilege against self-incrimination of art. 12” of the Massachusetts Declaration of Rights. See also G. L. c. 90, § 24(1)(e); Commonwealth v. Healy, 452 Mass. 510 , 513 (2008) (“It is well settled in Massachusetts that a defendant’s refusal to submit to a blood alcohol or field sobriety test is inadmissible at trial”); Commonwealth v. Ranieri, 65 Mass. App. Ct. 366 , 370-371 (2006).
The underlying rationale for this holding is that “a defendant’s refusal is the equivalent of his statement, ‘I have had so much to drink that I know or at least suspect that I am unable to pass the test.’ . . . Based on this analysis, evidence of a refusal to submit to a requested breathalyzer test is testimonial in nature.” Opinion of the Justices, 412 Mass. at 1209. Such a statement is compelled, the court reasoned, by the choice ordinarily facing such a defendant. “The accused is thus placed in a ‘Catch-22’ situation: take the test and perhaps produce potentially incriminating real evidence; refuse and have adverse testimonial evidence used against him at trial.” Id. at 1211.
In this case, the defendant did not refuse to take the breathalyzer test; had he done so, evidence of that refusal would have been inadmissible against him. Instead, he signed a form indicating that he consented to take the test. What followed — a series of physical actions — was properly the subject of the observing police officer’s testimony. This is not the “Catch 22″ situation that gave rise to the court’s concern in Opinion of the Justices, supra — one in which a criminal defendant has no choice but to provide incriminating evidence against himself. This defendant had a choice that would not have incriminated him, that is, he could have refused to take the breathalyzer test. Instead, he chose to sign the consent form. Thereafter, the jury could have inferred from his actions, as the Commonwealth argued, that he was trying to avoid giving a sample while appearing to try to take the test. Accordingly we conclude that the evidence was properly admitted.
Attorney Ronald A. Sellon