In an important decision delivered today, the Massachusetts Supreme Judicial Court concluded it was error for a trial judge to mention the Breathalyzer test to a jury in a case where the defendant was charged with operating under the influence of alcohol but chose not to take the test. The name of the case is Commonwealth v. Wolfe.
In February of 2013, a Marlborough police officer saw the defendant driving his SUV on Main Street at approximately 2:00 a.m. The SUV had a broke taillight and the officer began to follow it. The defendant crossed the double yellow line twice and the officer pulled him over. When the cop approached the SUV, he noticed the defendant had bloodshot, glassy eyes and was speaking with slurred speech. The defendant also smelled like alcohol. After first telling the cop he had been at a sandwich shop that had closed earlier in the evening, the defendant admitted he was coming from a nightclub and had had a “few” drinks. Following the cop’s instructions, the defendant got out of his vehicle and walked toward the cruiser. The cop testified that the defendant used the SUV for balance, and was unsteady on his feet as he was walking. The defendant was arrested and charged with operating under the influence of alcohol. Upon arrival at the police station, the defendant immediately fell asleep in the holding cell. Later, during the booking process, the defendant was given the opportunity to make a phone call but apparently had difficulty figuring out how to dial the phone. The defendant refused to submit to Breathalyzer analysis. In Massachusetts, when a defendant refuses to take the Breathalyzer, the prosecutor cannot share that information with the jury. However, there is an Appeals Court case from 2001 that had allowed a judge to instruct the jury that they were not to consider the lack of Breathalyzer evidence in any way during the jury deliberations. The trial judge, over the defendant’s objection, gave such an instruction in this case and the defendant was convicted. He appealed and the Supreme Judicial Court reversed.
The Commonwealth argued the challenged jury instruction was appropriate, because without the instruction the jurors would have speculated about why the prosecutor had not introduced evidence of a Breathalyzer test. The defendant, on the other hand, argued the instruction would have specifically focused the jurors’ attention on the lack of Breathalyzer evidence. The Court appeared to accept both arguments as potentially true. Ultimately, because the introduction of Breathalyzer evidence over a defendant’s objection violates his constitutional rights, the Court concluded it is appropriate to give the challenged instruction only when it is requested by the defendant. Accordingly, the defendant here was awarded a new trial.
The dissent, joined by three justices, argued that the challenged instruction is an effective deterrent to jury speculation. The dissent also said the Commonwealth, just like the defendant, has a right to prohibit improper speculation.
This is an excellent decision. The challenged instruction has been given over defendants’ objections for many years and it does more to invite speculation than to extinguish it.