Appeals Court (October 25, 2010)

The introduction of evidence of a failed breathalyzer attempt by the Commonwealth does not violate a defendant's right against self-incrimination.

The defendant was arrested for operating under the influence of alcohol. The defendant consented to take the breath test at the police station; however, after four unsuccessful attempts to provide a breath sample, the breath test operator stopped the testing process. At trial, the Commonwealth offered evidence of the failed attempts and the defendant was convicted.

On appeal, the defendant argued that the admission of his failed attempts violated his constitutional right against self-incrimination under Article 12 of the Massachusetts Declaration of Rights because they were tantamount to a refusal, and cited Opinion of the Justices, 412 Mass. 1201 (1992).

The Court disagreed and upheld the conviction:

"It is well settled that evidence of a defendant's refusal to take a chemical breath test offered by a police officer is not admissible against him in a trial for operating under the influence of intoxicating liquor. The accused is thus placed in a 'Catch-22' situation: take the test and perhaps produce potentially incriminating real evidence; refuse and have adverse testimonial evidence used against him at trial. In this case, the defendant did not refuse to take the breathalyzer test; had he done so, evidence of that refusal would have been inadmissible against him. Instead, he signed a form indicating that he consented to take the test. What followed--a series of physical actions--was properly the subject of the observing police officer's testimony. This is not the 'Catch 22' situation that gave rise to the court's concern in Opinion of the Justices, supra--one in which a criminal defendant has no choice but to provide incriminating evidence against himself. This defendant had a choice that would not have incriminated him, that is, he could have refused to take the breathalyzer test. Instead, he chose to sign the consent form."