Breathalzyer Refusal Evidence

Commonwealth v. Arruda, 73 Mass. App. Ct. 901 (2008)

A defendant's refusal to consent to an evidential blood or breath test administered by the police cannot be used against the defendant at trial. However, a DWI defendant's refusal to consent to a blood test requested by medical treatment providers for the purpose of medial treatment is admissible at trial, even where the person is under arrest for OUI at the time of the refusal to medical personnel.

Commonwealth v. Curley, 78 Mass. App. Ct. 16 (2011)

A DWI defendant's refusal to take a breathalyzer test is inadmissible in Mass. operating under the influence trial. However, a person's failure to provide an acceptable sample may be admissible. In this case, Officer Craig Perry of the Hudson, Massachusetts Police Department stopped James M. Curley for driving while under the influence of alcohol. While at the Hudson Police Station, Officer Donovan of the Hudson Police Department offered Curley a breath test. Curley consented to the breathalyzer test. However, he failed to form a seal around the breathalyzer mouthpiece, so that the breath sample was escaping and not going into the tube. He did this 4 times, despite instructions to blow with his lips sealed around the mouthpiece. He was later transported to a local hospital when he claimed “dehydration.” While at the hospital, Curley called his brother on the telephone and stated that he had "pulled a fast one." Unlike a breathalyzer refusal, this lack of cooperation was admissible at Curley's drunk driving trial.

Commonwealth v. Downs, 53 Mass. App. Ct. 195 (2001)

Because of the widespread public information regarding breath tests, judges can give instructions regarding the lack of breathalyzer evidence. However, the jury instructions cannot mention the legal right to refuse the breathalyzer or the possible reasons why a person might refuse to submit to such a test.

Commonwealth v. Koney, 421 Mass. 295 (1995).

Roger A. Koney was charged with 4th offense DUI, vehicular homicide, and driving on a revoked license. There was no evidence regarding Koney's blood alcohol level and the trial judge gave the jury a standard instruction regarding the lack of this evidence. Koney's DUI lawyer objected to the instruction regarding the lack of breathalyzer evidence. Prior to the trial, the DUI attorney properly filed a motion in limine which sought to exclude any evidence regarding the absence  of breathalyzer evidence due to an alleged "insufficient sample" having been provided. The judge's instruction to the jury regarding the lack of BAC evidence was legally problematic and his DUI conviction was reversed.

Commonwealth v. Sands, 424 Mass. 184 (1997)

Massachusetts State Trooper Robert Murphy stopped Paul J. Sands on Route 99 in the City of Malden, Massachusetts for driving extremely slow and for not staying within marked lanes. After having Mr. Sands perform field sobriety tests, Murphy formed the opinion that Sands was under the influence of alcohol and he arrested him for DUI.

At the barracks, during the booking process, Trooper Murphy asked Mr. Sands if he would take a chemical breath test. Sands replied, "I'm not drunk, but I'm over," and he did not take the test. The Mass. SJC ruled that it was permissible to allow this statement into evidence, even though G. L. c. 90, s. 24 (1) (e) prevents the admission of breathalyzer refusal evidence in Massachusetts OUI trials. The SJC ruled that the admission was not a refusal, but a gratuitous admission. The SJC noted that if Sands did not want to take the breath test, all he had to say was, "no." Instead of doing this, be made an admission which could legally be used against him at trial.

Commonwealth v. Sands, 424 Mass. 184 (1997)

Massachusetts State Trooper Robert Murphy stopped Paul J. Sands on Route 99 in the City of Malden, Massachusetts for driving extremely slow and for not staying within marked lanes. After having Mr. Sands perform field sobriety tests, Murphy formed the opinion that Sands was under the influence of alcohol and he arrested him for DUI.

At the barracks, during the booking process, Trooper Murphy asked Mr. Sands if he would take a chemical breath test. Sands replied, "I'm not drunk, but I'm over," and he did not take the test. The Mass. SJC ruled that it was permissible to allow this statement into evidence, even though G. L. c. 90, s. 24 (1) (e) prevents the admission of breathalyzer refusal evidence in Massachusetts OUI trials. The SJC ruled that the admission was not a refusal, but a gratuitous admission. The SJC noted that if Sands did not want to take the breath test, all he had to say was, "no." Instead of doing this, be made an admission which could legally be used against him at trial.

Commonwealth v. Scott, 359 Mass. 407 (1971)

A DUI defendant's refusal to submit to a breath or blood test is unfairly prejudicial and it cannot be admitted at trial.

Commonwealth v. Zevitas, 418 Mass. 677 (1994)

Where a judge improperly instructs a jury regarding the lack of breathalyzer evidence, the DUI conviction must be reversed as refusal evidence or the lack of breathalyzer evidence cannot be held against a person charged with OUI in Massachusetts.

Opinion of the Justices, 412 Mass. 1201 (1992)

Admission of a drunk driving defendant's refusal to take a breathalyzer test violates the constitutional prohibition against self-incrimination contained in Article 12 of the Massachusetts Declaration of Rights.

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