Breathalyzer Tests, OUIs, and Your Right Against Self-Incrimination

Most people are aware that breathalyzer tests are often used by police to detect intoxication. In Massachusetts, individuals have a legal right to refuse a breathalyzer test, but refusal can lead to an automatic driver’s license suspension. The right to refuse breathalyzer tests is based in the constitutional right against self-incrimination, and also protects individuals from having their refusal used as evidence against them in a criminal trial. Furthermore, judges and prosecutors are prohibited from commenting on an individual’s legal right to refuse a breathalyzer test.

Members of the public are commonly aware of these tests’ existence, and may wonder why breathalyzer evidence is omitted from a particular trial. This was the case in a recent Massachusetts Appeals Court case, Commonwealth v. Gibson, 82 Mass. App. Ct. 834 (2012). In this case, a jury asked about breathalyzer tests. The judge’s improper reference to the right to refuse was enough to reverse the defendant’s OUI conviction.

In this case, the defendant was driving home from a Super Bowl party when a police officer stopped him for running a red light. The officer administered field sobriety tests, determined that the defendant had failed, and arrested the defendant.

At trial, no breathalyzer test or result was introduced into evidence. The jury asked the judge why a breathalyzer test would or would not be administered. The judge instructed that the jury should not consider the presence or absence of breathalyzer evidence, but also improperly instructed that “a person does not have to take it.” Defense counsel did not object to this improper allusion to the right to refuse a breathalyzer test. Nevertheless, the Massachusetts Appeals Court reversed the conviction, finding that the improper instruction and the failure to object created a substantial risk of a miscarriage of justice.

If you have questions about refusing breathalyzer tests, or if you have already been charged with an OUI in Massachusetts, don’t wait to get help! Contact the attorneys at Hutchins Law, P.C. today.

The purpose of this article is to inform our clients of developments in the law and to provide information of general interest. It is not intended to constitute legal advice or to assume a client relationship. The content of this article could be considered advertising under the rules of the Massachusetts Supreme Judicial Court. Copyright © 2012 Hutchins Law, P.C. All Rights Reserved.