Commonwealth v. Gawlik, Jr. 2011 WL 1450346 In this short decision, the defendant argued that his attorney was constitutionally ineffective for failing to introduce available medical records to establish is inability to pass the field sobriety tests. The appeals court noted that in Massachusetts, a defendant may use medical records to supply a basis for failing to complete (or pass) field sobriety testing (see Commonwealth v. Schutte, 52 Mass.App.Ct. 796, 800 (2001)). Although counsel did not use the actual medical records, he did elicit uncontested evidence on cross examination about the defendant's ailments. Holding that the attorney's decision NOT to use the records could have been a tactical decision (i.e. the records might have revealed prejudicial information such as drug abuse or alcoholism) the appeals court affirmed the conviction.
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