If I Try to Blow the Breathalyzer in Massachusetts but Can’t Give a Valid Sample, Will the Jury Know?

The Massachusetts Supreme Judicial Court today ruled that when a driver is suspected of operating under the influence of alcohol and agrees to blow the Breathalyzer, her inability to provide a valid sample will be shared with the jury.  The name of the case is Commonwealth v. Adonsoto

A Stoughton police officer stopped the defendant’s car at around 2:30 in the morning on July 22, 2012.  A fellow motorist watched as the defendant drove down the middle of the road, straddling the double-yellow line.  The defendant reportedly swerved repeatedly in her lane and drove over the fog line about 20 times.  The motorist called the police.  A Stoughton cop found the defendant’s car and watched the defendant blow through a stop sign.  After the officer stopped the defendant, he approached the driver side’s open window and observed that the defendant’s eyes were glassy and her speech was slurred.  The officer also smelled alcohol coming from inside the vehicle.  When she got out of her car, the defendant was unsteady on her feet and the officer arrested her for operating under the influence of alcohol.  Back at the station, the officer asked if the defendant would be willing to submit to Breathalyzer analysis and she agreed.  She was given three chances to blow into the machine, but on each attempt she failed to seal her lips around the mouthpiece.  As a result, the machine did not receive an adequate amount of air to render an analysis of the defendant’s blood alcohol content.

Massachusetts is one of only a few states that does not allow a defendant’s refusal to take the Breathalyzer into evidence.  The Supreme Judicial Court has ruled refusal evidence is akin to a defendant refusing to incriminate herself, and is therefore inadmissible under the Massachusetts Declaration of Rights.  Thus, if a defendant tells the police she will not blow into the machine, the jury never finds out.  In this case, the defendant argued her inability to provide an adequate breath sample constituted a refusal and should not be admitted.  The trial judge disagreed and allowed the Commonwealth to tell the jury the defendant had agreed to submit to Breathalyzer analysis but had been unable to provide an accurate sample.  The Supreme Judicial Court agreed evidence regarding the defendant’s inability (or unwillingness) to provide a proper breath sample was properly admitted at her trial.  The Court said the defendant’s right not to incriminate herself was eliminated when she agreed to submit to the test.  It was proper for the Commonwealth to admit evidence that the defendant may have purposefully been trying to avoid blowing into the machine while making it appear that she was willing to take the test.  Accordingly, the evidence of the defendant’s failure to provide a Breathalyzer sample was properly presented to the jury and her conviction was affirmed.

Whether to take the Breathalyzer is always a difficult question for people under arrest for operating under the influence of alcohol.  Taking and failing the Breathalyzer results in a much lighter administrative license suspension from the Registry of Motor Vehicles.  However, a Breathalyzer failure makes it much more difficult to defend the case in court.