Sunday, March 20, 2011

DUI Appeal - Massachusetts Drunk Driving, Refusing Field Tests, Admissibility

This case comes to DAD courtesy of Mass attorney and expert Tom Workman. In Commonwealth of Massachusetts v. Beaulieu, 09-P-1565 (2011), the defendant appealed his conviction claiming, amongst other things, that the introduction of evidence that he had refused field sobriety tests was error. It is well established that evidence of a defendant's refusal to perform field sobriety tests is inadmissible under art. 12 of the Massachusetts Declaration of Rights. Commonwealth v. Curley, 78 Mass.App.Ct. 163, 167 n. 11 (2010), citing Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995).

Defense counsel, unfortunately, pursued a defense that suggested that the officer had failed to conduct a thorough investigation. Defense counsel in his opening statement described in considerable detail the field sobriety tests that police officers typically request an individual to perform after being stopped on suspicion of operating a motor vehicle while under the influence of alcohol. Defense counsel informed the jury that the purpose of the tests is to determine if the person is intoxicated, and if the performance is satisfactory, the person is not arrested. The jury then was informed by defense counsel, "Now, the police officer, notwithstanding the [weather] conditions, never asked my client to do any of these things, absolutely none of these things."

On cross-examination of the arresting officer, defense counsel asked the witness to describe the various field sobriety tests. After the witness complied, defense counsel asked the witness if he ever asked the defendant to perform the field sobriety tests. The witness responded that he indeed had asked the defendant to perform the tests.

Holding that the defense counsel had opened the door to otherwise inadmissible testimony, the appeals court upheld the introduction of evidence that the defendant refused.

Editors note: This case is a good example of what happens when an eager defense attorney goes 'one step too far.' Always avoid making a statement to the jury about a fact which, although legally suppressed, is untrue. Such conduct not only will destroy the defense counsel's credibility before that judge and that jury, but it likely also destroyed the defendant's chance at winning. Lastly, this is the type of conduct that could lead to licensing sanctions.

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