Refused a breathalyzer? Court gives defendants power to decide whether jury is instructed to ignore the absence of breathalyzer evidence

In an October 2017 opinion, the Massachusetts Supreme Judicial Court decided that a judge could no longer instruct a jury about a defendant’s refusal to take a breathalyzer test unless the defendant requested the instruction. An individual stopped on suspicion of operating a vehicle under the influence, more commonly known as OUI, already had a legal right to take or refuse a breathalyzer, and the refusal could not be entered into evidence at trial. However, until recently, the prosecutor could request that the judge instruct the jury that they could not consider the absence of breathalyzer evidence at trial when determining guilt or innocence—an instruction that could focus the jury on the absence of that evidence and cause them to speculate that the defendant had refused the breathalyzer. Now, during a trial for OUI, the absence of breathalyzer evidence should not be mentioned in jury instructions unless at the request of the defendant.

In Commonwealth v. Wolfe, the defendant was charged with OUI in 2015. He had two trials; the first ended in a mistrial. During both trials, there was no evidence presented of the defendant’s blood alcohol level. During the second trial, the judge instructed the jury, over the defendant’s objection, not to consider the absence of breathalyzer tests in their deliberations. The judge decided to give the instruction because the jury in the first trial had asked about the lack of breathalyzer test. The second jury ultimately convicted the defendant.

While a judge generally has considerable discretion regarding jury instructions, here the court found that the instruction’s implications for the defendant’s right against self-incrimination made it the “simpler and safer approach” to “leave such an instruction to the defendant’s choice.” This approach mirrors the SJC’s approach to instructing a jury in cases where a defendant has chosen not to testify: prior cases have made it clear that, in order to avoid inappropriately focusing the jury on the defendant’s failure to testify, possibly causing the jury to infer from the choice not to testify that the defendant has something to hide, the best practice is for the trial court to instruct a jury not to consider the fact that the defendant did not testify only if the defendant requests the instruction. In so holding, the court overruled a 2001 Appeals Court case which allowed a similar jury instruction because allowing the jury to make a negative inference based on the lack of evidence can lead to too serious a consequence for a defendant.

The SJC also addressed the possibility that a jury may ask about the absence of a breathalyzer test. The court instructed judges that the best response to the question is to reiterate to the jury that they should not speculate about facts not in evidence. This practice would not highlight the lack of a breathalyzer test and would remind the jury of their overall responsibility in deciding a case. Unfortunately, this decision will not apply retroactively, therefore only new OUI cases will apply this standard.

This decision preceded a wave of other legal action concerning OUI cases in Massachusetts. There have been ongoing investigations into the reliability of breathalyzer tests. Defense attorneys have been working with the Office of Alcohol Testing, which is overseen by the state police, to release documents concerning breathalyzer test results. In an agreement between defense attorneys and prosecutors, prosecutors will exclude breathalyzer test evidence from outstanding cases from 2011 to 2017. This has the potential to affect over 35,000 cases in Massachusetts. Our office is continuing to monitor these legal developments.

If you are facing an OUI charge and need legal help you can contact us here, or call the attorneys at Zalkind Duncan & Bernstein LLP at (617) 742-6020.

*Not yet licensed to practice law