Supreme Judicial Court (March 29, 2011)

The admission in evidence of an "Operating Under the Influence Statutory Rights and Consent Form," without redacting the language regarding a right to an independent medical examination under G.L. c. 263, § 5A, is not a violation of one's privilege against self incrimination under Article 12 of the Massachusetts Declaration of Rights. However, where it not relevant to any contested issue at trial, the language should be redacted before being admitted in evidence.

The defendant was arrested for Operating Under the Influence of Alcohol, fifth offense, and Negligent Operation of a Motor Vehicle. At the police station, a certified breath test operator asked the defendant whether or not he would consent to the administration of a breath test. The breath test operator read the defendant various rights and consequences associated with consenting or refusing the breath test as laid out in the "Operating Under the Influence Statutory Rights and Consent Form." Included in that form is an individual's right to an independent medical examination under G.L. c. 263, § 5A, which reads:

"A person held in custody at a police station or other place of detention, charged with operating a motor vehicle while under the influence of intoxicating liquor, shall have the right, at his request and at his expense, to be examined immediately by a physician selected by him. The police official in charge of such station or place of detention, or his designee, shall inform him of such right immediately upon being booked, and shall afford him a reasonable opportunity to exercise it. Such person shall, immediately upon being booked, be given a copy of this section unless such a copy is posted in the police station or other place of detention in a conspicuous place to which such person has access."

The consent form also explains the consequences of refusing to submit to a breathalyzer test (suspension of driver's license) and of registering a blood alcohol content by percentage of body weight higher than .08, which is a criminal violation of G.L. c. 90, § 24(1) (a ) (1). At its end, the consent form includes boxes denominated "Yes" and "No" for a suspect to check, indicating consent or refusal of consent for submission to a breathalyzer test. The defendant checked the "Yes" box on the form, indicating consent to the administration of a breathalyzer test and signed his name on the line provided. The test was performed and the result was a .25 blood alcohol level.

At trial, the Commonwealth introduced in evidence the "Operating Under the Influence Statutory Rights and Consent" form. The defendant objected to the admission of the section of the form that advises the defendant of his § 5A right to obtain a medical examination by an independent physician, and requested its redaction. He argued that admission of language explaining this right coupled with the fact that no independent examination would be offered in evidence, would make it evident to the jury that the defendant declined to avail himself of that right. This combination of facts, defense counsel argued, created an inference of the defendant's consciousness of guilt in violation of his privilege against self-incrimination in Article 12.

The defendant was convicted of the charges and appealed arguing that the admission of the consent form without redaction of the portion notifying him of the right under § 5A, to an independent medical examination 1) violated his privilege against self-incrimination under Article 12; and 2) constituted prejudicial error where it was not relevant to any contested issue at trial. The Supreme Judicial Court granted direct appellate review of the case.

The defendant argues that admission in evidence that he was offered a right to an independent medical examination coupled with the lack of evidence of results of such an examination violates the privilege against self-incrimination because the jury could infer that he did not seek an independent examination because he was aware of his own guilt. The Court disagreed, ruling that evidence of notification to the defendant of the right to a medical examination is advisory and not compulsory. "It is an announcement of the mere availability of an option. The statute simply requires police to inform the person in custody of such right immediately upon being booked. This notification is not a police request, nor does it force the defendant to choose between two potentially inculpatory alternatives. What distinguishes the notification of the § 5A right from police requests for evidence, such as a breath sample for testing in a breathalyzer machine, is that the defendant remains in independent control not only of what his response will communicate, if anything, but also, when he will provide a response, if at all. A police officer's provision of a general notification of a defendant's § 5A right that, although time sensitive, requires no immediate invocation, cannot properly be construed as a compulsion, and as such, fails to qualify for the self-incrimination privilege of Article 12."

The mere fact that evidence of an independent exculpatory examination was not introduced at trial does not, necessarily, mean that the defendant refused to exercise the right in recognition of his guilt and thus is not testimonial in nature. There are many reasons that a person might decline to seek an independent medical examination other than recognition of guilt - the cost, the hour, the difficulty of securing a doctor at that late hour, etc.

The admission of the form without redaction of the language notifying the defendant of his right to an independent medical examination was not unconstitutional.

The defendant also argued that introduction in evidence of the unredacted form constituted prejudicial error where it was not relevant to any contested issue at trial. "The results of a breathalyzer test memorialize a scientific measurement that, if properly administered on an accurate and unflawed device, would produce the same result whether or not the defendant was informed that he also could have an independent examination. As such, evidence that the defendant was notified of his § 5A right on the consent form neither vouches for the credibility of that quantitative measurement nor assists the jury in determining the proper weight to assign to the test results. See Mass. G. Evid. § 104(e). Nor could that portion of the consent form constitute admissible direct evidence tending to prove the elements of the criminal offense (operation, public way, and impairment). See G.L. c. 90, § 24(1) (a ) (1). In these circumstances, where the defendant conceded the voluntariness of consent, evidence that the defendant was advised of his rights attendant to § 5A, although probative of a predicate question of admissibility, is not relevant evidence for the jury. As such, the judge should have redacted the challenged portion of the consent form." However, the Court found the failure to redact the form in this case was not prejudicial and affirmed the defendant's convictions.