Massachusetts law allows motorists to decline field sobriety tests. You cannot be penalized for refusing to take a field sobriety test, although license suspension may apply for refusing a breathalyzer test. See Massachusetts OUI Brochure. The fact that you refused a field sobriety test cannot be used against you in court. See Commonwealth v. Blais, 428 Mass. 294, 298-299 (1998).
Despite this right to refuse, once you agree to perform a field sobriety test, any comments or observations you make can be used as evidence against you. This was the case in Commonwealth v. Brown, 83 Mass. App. Ct. 772 (2013). Mr. Brown was observed driving on the wrong side of the street at 1:30 AM. An officer followed him 0.3 mile before Brown turned into his driveway. The officer asked Brown to perform two field sobriety tests. Brown complied, but after unsuccessfully attempting a one-legged stand, stated, “I can’t do this.” Id. at 774-75.
Brown later objected to the introduction of this statement into evidence against him. He argued that he did not have to take the test, and so his statement should be protected as “compelled testimony,” just as his refusal to take the test would have been.
The Massachusetts Appeals Court disagreed. The right against self-incrimination protects only evidence of refusal. If such refusals were not protected, a defendant would be stuck deciding between taking the test and furnishing incriminating evidence, or refusing and having that refusal introduced as evidence of guilt. See id. at 778.
The court distinguished between refusal to take a test and volunteered statements made after the defendant agreed to attempt the tests. “Once the defendant agrees to take the test and attempts it, his expressions of difficulty or inability to perform or to complete it, such as ‘I can’t do this,’ ‘I give up,’ or ‘I’ve had too much to drink,’ are not the products of compulsion and thus are admissible.” Id. at 778-79. Mr. Brown’s statement that he could not do the one-legged stand could be used as evidence against him.
Know your rights. Protect your rights. The attorneys at Hutchins Law, P.C. have experience challenging all types of sobriety tests. Our attorneys can also help you challenge the motor vehicle violation or other cause that officers may use as the basis for a traffic stop. Call today to discuss your rights regarding past or future traffic stops.