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KJC Law Firm at the Forefront of Legal Developments in Breathalyzer Refusal Jury Instructions

Can a Massachusetts prosecutor use a defendant’s refusal to take a breathalyzer test as evidence of drunk driving? The short answer is no, but understanding why this is the answer is a bit more complicated.
Everyone is familiar with the Fifth Amendment to the United States Constitution’s provision that no person “shall be compelled in any criminal case to be a witness against himself.” We’ve all heard someone – maybe on a TV show or maybe even in person – ‘plead the fifth’ by refusing to answer questions in some formal, legal setting.

What fewer people may know is that the Massachusetts Constitution’s protections against self-incrimination are even broader those contained in the Fifth Amendment. Under the Massachusetts Constitution, in addition to being entitled to refuse to be “a witness against himself,” a defendant also has the right not to “be compelled to . . . furnish evidence against himself.” While the difference in language is slight, its implications in drunk driving cases is very significant

The protection against being “compelled to . . . furnish evidence against” oneself takes on especial importance for defendants who refuse breathalyzer testing. In the early 1990s, the Massachusetts Senate asked the Supreme Judicial Court whether using evidence of a breathalyzer refusal to prove a drunk driving charge would violate the protection against compelling a person to furnish evidence against himself, and the Supreme Judicial Court answered that it. Opinion of the Justices to the Senate, 412 Mass. 1201 (1992). Following this, the legislature passed a law requiring judges to instruct juries in drunk driving cases with no breathalyzer evidence that, among other things, “there may be a number of reasons why a person would not take such a test”; the Supreme Judicial Court struck down that instruction because it violated the constitutional protection against compelling a defendant to furnish evidence against himself. See Commmonwealth v. Zevitas, 418 Mass. 677 (1994).

This brings us to the current state of the law, which is set forth in Commonwealth v. Downs, 53 Mass. App. Ct. 195 (2001). In that case, despite a defendant’s having objected to it, the judge instructed the jury as follows:

You are not to mention or consider in anyway whatsoever, either for or against either side, that there is no evidence of a breathalyzer. Do not consider that in any way. Do not mention it. And put it completely out of your mind.

The Massachusetts Appeals Court held that this instruction was permissible, and the Supreme Judicial Court decided not to review that case.

Recently, Luke Rosseel took on a criminal appeal involving this precise issue. Having noted that the Appeals Court already approved of the so-called Downs instruction, Attorney Rosseel applied to the Supreme Judicial Court to review the case, and his application was granted. The Supreme Judicial Court has even solicited briefs from experts in the field – called Amicus Briefs – in order to help it decide the important issue of whether the so-called Downs instruction should remain in effect. To learn more about this case, check it out here.

If you or someone you know feels that their right not to be compelled to furnish evidence against themselves has been violated, you should consider contacting KJC Law Firm, LLC. We are passionate about protecting individual’s rights, even if that means bringing their case all the way to the top court in the Commonwealth!

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