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Leonardo Angiulo: The Right to Refuse a Breath Test

Monday, December 03, 2012


Leonardo Angiulo, GoLocalWorcester Legal Expert

The charge of operating under the influence in Massachusetts breaks down into three major parts.  The first is operation of a motor vehicle, second is doing so on a public way.  The third piece is the kicker: operating said motor vehicle while under the influence of alcohol.  While this subject has appeared in my column before, a recent Massachusetts Appeals Court case highlights an important issue at trial for people who refuse breath testing after arrest. 

Being under the influence is usually proven by the opinion of the officer who meets with a defendant at roadside and observes their condition.  Every so often, however, there are also blood alcohol tests conducted at the station when a person takes a breath test.  The thing is, though, that no one is forced to take that breath test.

There are some incentives to taking the test.  First time offenders, for example, get a thirty day loss of license for failing a breath test instead of 180 days for refusing to take it.  There are, however, some detriments as well.

By taking a breath test and failing, you are voluntarily providing evidence against yourself.  Notice the word “voluntarily” I put in there.  As mentioned in other columns, a fundamental part of our federal and state constitution is the right against self-incrimination.  The provisions of each constitution have been interpreted differently and, often, the Massachusetts State Constitution may offer additional protections not found in federal jurisprudence.

A recent case, Commonwealth v. Gibson, provides a study in this distinction.  Article 12 of the Massachusetts Declaration of Rights is the state counterpart to the Fifth Amendment to the United States Constitution.  As the appeals court points out in Commonwealth v. Gibson, article 12 offers people certain protections unavailable in other states: the ability to refuse breath tests after arrest and the right to a trial without having that refusal introduced in evidence.

The facts of Commonwealth v. Gibson are interesting because it describes a trial that transpired properly.  The issue arose when the jury filed a question as to why a breath test may or may not be administered.  In response the court gave a supplemental instruction that, among other things, mentioned a person's right to refuse breath tests.  The jury later convicted the defendant. 

The Appeals court stated, in these factual circumstances, that mentioning the mere possibility that a defendant could refuse breath testing is such a significant constitutional error that the conviction must be reversed.  The problem is not so much the words themselves, but the inference that the lack of test could be attributed to the defendant's choice.  This is to say that it is unconstitutional for a conviction to be based on the presumption that “an innocent person has nothing to hide” and this defendant acted like a guilty person by refusing the breath test.

So, the moral of the story is that, under the current state of the law, your breath test refusal will not come into evidence.  That doesn't make the resulting license suspension any easier though.


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