Lower Court Verdict Reversed due to Error in Jury Instructions Regarding Defendant's Right to Refuse Breath Test - Boston Criminal Defense Attorneys Parker Scheer

December 19, 2012
By Parker Scheer LLP on December 19, 2012 3:42 PM |

A Massachusetts' appellate court has reversed a lower court's verdict where the judge erred in instructing the jurors on the defendant's right to refuse to take a breath test. Commonwealth v. Gibson.

On Super Bowl Sunday, Henry Gibson went to a Super Bowl party where he ate food and drank two light beers. At halftime he went to another party where he drank two more light beers and had more food. On the way home, Gibson stopped at a red light. Impatient, he proceeded through the red light, and was immediately stopped by the police. After the officer smelled alcohol, Gibson admitted to drinking four beers. The officer asked Gibson to step outside his car and perform several field sobriety tests.
When the officer felt Gibson failed each test, he was placed under arrest for driving under the influence (DUI).

At trial, the prosecution did not enter into evidence the results of a breathalyzer test. At the close of the trial, the judge instructed the jury that "The police do not have to offer [a breathalyzer test, and] a person does not have to take it ... You are not to mention or consider it in any way whatsoever, either for or against either side."

Gibson appealed his guilty verdict arguing that telling the jury that a person may refuse a breathalyzer test was a violation of his right against self incrimination.

In Massachusetts, it is settled law that a defendant's refusal to take a blood test or breath test to detect alcohol is not admissible as evidence because such a refusal is testimonial in nature and its admission violates the privilege against self incrimination. While the trial judge correctly instructed the jury that there were not to consider any absence of breathalyzer evidence, the judge erred when he also said that "a person does not have to take [a breathalyzer test]." Further, the fact that defense counsel did not object to the instruction is not relevant since the judge's instruction error created a substantial risk of a miscarriage of justice.

Trial court decision reversed and verdict set aside.

If you or a family member has been charged with DUI or any other drunk driving related charge, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers.