The Massachusetts Appeals Court today reversed a man’s conviction for operating under the influence of alcohol (third offense) after concluding the prosecutor had introduced to the jury documents from the Registry of Motor Vehicles that referenced the defendant’s refusal to submit to Breathalyzer analysis on prior cases. The name of the case is Commonwealth v. Cueva.
During the early evening hours of August 28, 2015, a Revere police officer was following the defendant on the American Legion Highway. When traffic became heavy, the defendant pulled onto an adjacent sidewalk and drove approximately 200 feet before turning into a liquor store parking lot and stopping. The officer activated his emergency lights and followed the defendant into the parking lot. When the cop approached the defendant’s car, he had to knock on the driver’s side window numerous times before the defendant rolled down his window. The defendant was unable to produce a driver’s license or the vehicle’s registration. The officer smelled an odor of alcohol and observed the defendant’s movement to be slow. The defendant also had glassy and bloodshot eyes. Believing the defendant might be intoxicated, the officer asked him to get out of his car and submit to a series of field sobriety tests. Following an unimpressive performance on the tests, the defendant was arrested and charged with operating under the influence of alcohol (third offense) and operating with a suspended driver’s license. At his trial in Chelsea District Court, the prosecutor admitted documents from the Registry of Motor Vehicles in an effort to establish the defendant’s driver’s license had previously been suspended. The documents made several references to the defendant refusing a chemical test during his previous OUI cases. The jury convicted the defendant of both criminal charges. The Appeals Court reversed.
In Massachusetts, evidence that a defendant has refused to submit to a Breathalyzer test is not admissible. The Supreme Judicial Court has ruled such evidence violates a defendant’s privilege against self-incrimination under the Massachusetts Constitution. In this case, the Appeals Court expressed concern the jury would speculate that the defendant had not taken the Breathalyzer in previous cases because he believed he had had too much to drink. Such speculation would cause the defendant to suffer unfair prejudice, and introduction of the documents without redaction was therefore an error. The next question for the Court was whether the error constituted a substantial risk of a miscarriage of justice. The Court opined that the evidence against the defendant was not overwhelming. While there were signs the defendant had been drinking, he was not driving erratically (and there was evidence the sidewalk on which he drove was wide enough to fit a car). Because the Court harbored serious doubt as to whether the jury might have returned a different verdict if the error had not occurred, the defendant’s OUI conviction was reversed and the case was remanded to the district court for a new trial.
The Court also reversed the conviction for operating with a suspended driver’s license. While it was clear that the license had been suspended, it was unclear that the defendant had received notice of the suspension, which is an element of the crime.