Commonwealth v. Lopes
Massachusetts Supreme Judicial Court
March 29, 2011
Docket No. SJC-10731
Self-incrimination, Breathalyzer test, Motor Vehicle, Operating under the influence, Redaction
A jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor (OUI) and negligent operation of a motor vehicle on a public way. The defendant appealed his convictions claiming that the admission of the consent form for the breathalyzer test violated his privilege against self-incrimination as guaranteed by Article 12 of the Massachusetts Declaration of Rights. The Supreme Judicial Court (SJC) held that the admission of the consent form was not prejudicial error, but because it was not relevant to any issue of fact for the jury, it would have been better practice for the judge to order that the form be redacted before it was admitted into evidence.
Facts
On June 20, 2006, a police officer observed the defendant driving his vehicle in reverse, traveling northbound in a southbound lane. The officer used his air horn to alert the defendant that oncoming traffic was approaching; the defendant stopped his vehicle and nearly hit an approaching car. The officer then used his siren to stop the defendant.
The officer smelled alcohol on the defendant’s breath when the defendant told the officer that he did not have his driver’s license and vehicle registration. The defendant insisted that he was not intoxicated and offered to take a field sobriety test. After stating that he did know the English alphabet, the defendant attempted to recite the alphabet from A to M, but only reached E or F before stopping. The defendant attempted to recite the alphabet a second time and was not able to do so.
The officer asked the defendant to perform the one-leg stand test. The test required that the defendant stand with one foot up with his hands at his sides while counting to thirty. The defendant attempted to do so, but was not able to keep his arms on his hips and lost his balance while only counting to thirteen.
Lastly, the officer requested that the defendant perform the finger-to-nose test, where he would close his eyes and try to touch his nose with the index finger of one hand and then the other hand. As soon as the defendant closed his eyes, he almost fell to the ground. The officer arrested the defendant and transported him to the police station.
At the station, a sergeant, who was certified to perform the breathalyzer test, requested the defendant’s consent to perform a breathalyzer test. The sergeant read the defendant his rights in regards to the test, including the defendant’s right to have a physician selected by the defendant examine him. The defendant indicated that he consented to the breathalyzer test on the consent form, which also listed the defendant’s rights concerning the test. The defendant’s blood alcohol content was measured at .25 per cent, .17 per cent higher than the legal limit.
At trial, the judge admitted into evidence the breathalyzer results and records about the accuracy of the machine used for the test. The judge also admitted the entire consent form over the defendant’s objection because the judge concluded that the form was relevant to the weight and credibility of the breathalyzer test results. The jury subsequently convicted the defendant of operating under the influence and negligent operation of a motor vehicle.
Admission of the Consent Form
Defense counsel argued at trial and on appeal that the portion of the form that advised the defendant of his right to obtain a medical examination by a physician should have been redacted. Defense counsel believed that the jury would conclude that the defendant did not invoke his right to an independent examination and that would create an inference of the defendant’s consciousness of guilt in violation of his privilege against self-incrimination guaranteed by Article 12 of the Massachusetts Declaration of Rights.
The SJC stated that the privilege against self-incrimination protects the defendant from being forced to provide testimonial evidence – evidence that would reveal the defendant’s knowledge or thoughts. However, admission of the consent form is different from other types of testimonial evidence that would show the defendant’s consciousness of his own guilt, such as a refusal to consent to a breathalyzer test. The notification of the right to seek an independent medical examination is not a request for evidence, but an advisement of the defendant’s options. The defendant is in control of what his response will say about his actions.
The SJC also noted that there were many reasons a defendant may chose to not exercise the option to obtain an independent medical examination, including financial reasons, inability to arrange for transportation to a physician, inability to find a physician to conduct the examination at whatever hour the defendant may have been arrested, or personal or religious reasons. Therefore, the admission of the form was not unconstitutional.
Relevance of the Consent Form
The SJC concluded that the jury’s consideration of the language from the consent form did not serve a relevant evidentiary purpose. General Laws c. 90, § 24(1)(e) provides that the results of a breathalyzer test can be admitted when certain conditions are met, including that the defendant consented to the test and that the defendant was notified of his right to obtain an independent medical examination. The defendant argued that it was error to admit into evidence the portion of the consent form notifying the defendant of his right to an independent medical examination because the question of whether the requirements of G.L. c. 90 § 24(1)(e) were met was one for the judge.
The SJC agreed with the defendant that this was a question of law for the judge and not the jury. The consent form was also not relevant in assisting the jury with determining what weight to give the breathalyzer test results because the breathalyzer test is a scientific test, that produces the same results regardless of whether the defendant knew of his right to an independent medical examination. However, the SJC concluded that this was not a prejudicial error given the evidence presented about the defendant’s driving on the day the police officer arrested him and the breathalyzer results.
The convictions were affirmed.
- Prepared by JM
