In an October 2017 opinion, the Massachusetts Supreme Judicial Court decided that a judge could no longer instruct a jury about a defendant’s refusal to take a breathalyzer test unless the defendant requested the instruction. An individual stopped on suspicion of operating a vehicle under the influence, more commonly known as OUI, already had a legal right to take or refuse a breathalyzer, and the refusal could not be entered into evidence at trial. However, until recently, the prosecutor could request that the judge instruct the jury that they could not consider the absence of breathalyzer evidence at trial when determining guilt or innocence—an instruction that could focus the jury on the absence of that evidence and cause them to speculate that the defendant had refused the breathalyzer. Now, during a trial for OUI, the absence of breathalyzer evidence should not be mentioned in jury instructions unless at the request of the defendant.
In Commonwealth v. Wolfe, the defendant was charged with OUI in 2015. He had two trials; the first ended in a mistrial. During both trials, there was no evidence presented of the defendant’s blood alcohol level. During the second trial, the judge instructed the jury, over the defendant’s objection, not to consider the absence of breathalyzer tests in their deliberations. The judge decided to give the instruction because the jury in the first trial had asked about the lack of breathalyzer test. The second jury ultimately convicted the defendant. Continue reading