field sobriety test in Massachusetts

2013As we have already noted, “ [o]rdinarily, a prosecutor wants to admit evidence that the defendant refused to take a field sobriety test so that the jury may infer that it is the equivalent of his statement, T have had so much to drink that I know or at least suspect that I am unable to pass the test.’ Opinion of the Justices , [412 Mass.] at 1209.” Commonwealth v. McGrail, 419 Mass. 774, 778 (1995). “[T]he admissibility of such a refusal would place a defendant in a coercive ‘Catch-22’ situation: Take the test and ‘furnish’ incriminating real evidence against oneself, or refuse and produce adv

2010See Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995) (“We see very little difference between evidence of refusal to take a breathalyzer test and refusal to take a field sobriety test”); Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 61-62 (1998); Commonwealth v. Ranieri, 65 Mass. App. Ct. at 371-373 .

2024See Blais, 428 5 Because consent is not an issue in the circumstances presented here and, more fundamentally, because there is no constitutional right to refuse to perform field sobriety tests, see Blais, 428 Mass. at 299 -300 & n.3, the cases relied on by the defendant, which discuss the various factors to be considered in determining whether a person's relinquishment of a constitutional right is given freely and voluntarily, are not applicable. 6 Although the defendant maintains that Officer Delvecchio should have advised her that she could refuse to perform the tests, she cites to no author

2008The judge could also properly consider the defendant’s failure of the field sobriety test, see Commonwealth v. Blais, 428 Mass. 294 , 299-301 & n.3 (1998), and, as mentioned, the defendant does not challenge the judge’s denial of her motion to suppress this evidence.

2013As we have already noted, “ [o]rdinarily, a prosecutor wants to admit evidence that the defendant refused to take a field sobriety test so that the jury may infer that it is the equivalent of his statement, T have had so much to drink that I know or at least suspect that I am unable to pass the test.’ Opinion of the Justices , [412 Mass.] at 1209.” Commonwealth v. McGrail, 419 Mass. 774, 778 (1995). “[T]he admissibility of such a refusal would place a defendant in a coercive ‘Catch-22’ situation: Take the test and ‘furnish’ incriminating real evidence against oneself, or refuse and produce adv

1998In McGrail , the court concluded that “evidence of the defendant’s refusal to submit to a field sobriety test constitutes testimonial or communicative evidence,” 419 Mass. at 778 , following the court’s earlier Opinion of the Justices that admission of a defendant’s refusal to take a breathalyzer test “is the equivalent of his statement, T have had so much to drink that I know or least suspect that I am unable to pass the test.’ ” 412 Mass. at 1209 .

2024Furthermore, while statements of refusal to perform field sobriety tests are inadmissible, "statements of a person's difficulty or inability to perform a field sobriety test . . . are not the product of compulsion within the meaning of art. 12 and thus are available for use against the individual at trial." Commonwealth v. Brown, 83 Mass. App. Ct. 772, 773 (2013).

2017See Commonwealth v. Brown , 83 Mass. App. Ct. 772 , 779 (2013). 2 The police testimony, that the officers arrested the defendant in part because when "he was asked to take a field sobriety test," he appeared "disinterested," and was "looking off," "not paying attention," and "aloof," was not suggestive of the defendant's consciousness of guilt, and thus admissible.

2013See Commonwealth v. Conkey, 430 Mass. 139, 142 (1999) (“evidence admitted to show consciousness of guilt is always testimonial because it tends to demonstrate that the defendant knew he was guilty”). “[I]f refusal evidence has relevance to any issue essential to the prosecution’s case, it is because it is reflective of the knowledge, understanding, and thought process of the accused.” Opinion of the Justices, supra at 1211.

2004The same reasoning has applied to exclude evidence of a defendant’s refusal to participate in a field sobriety test, Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995); evidence of a defendant’s refusal to let his hands be swabbed for the presence of gunpowder residue, Commonwealth v. Lydon, 413 Mass. 309, 313-315 (1992); evidence of a defendant’s refusal to turn over sneakers for comparison with prints at a crime scene, Commonwealth v. Hinckley, 422 Mass. 261, 264-267 (1996); and evidence of a defendant’s failure to appear at a police station for fingerprinting, Commonwealth v. Conkey, su

2024See Cromwell, supra at 439 ; see also Manning, 41 Mass. App. Ct. at 22 ("Such an inference is also supported by the failure of the bystanders at the scene to dispute the defendant's identity as the operator when the officer obviously was treating him as such by administering the field sobriety tests").

2024See Cromwell, supra at 439 ; see also Manning, 41 Mass. App. Ct. at 22 ("Such an inference is also supported by the failure of the bystanders at the scene to dispute the defendant's identity as the operator when the officer obviously was treating him as such by administering the field sobriety tests").

2018See Commonwealth v. Merry , 453 Mass. 653 , 661 (2009) ("That evidence is conflicting does not demand a required finding of not guilty....

2018See Commonwealth v. Healy , 452 Mass. 510 , 513 (2008).

2014Cf. Commonwealth v. Daniel, 464 Mass. 746, 756-757 (2013) (“[T]he Commonwealth elicited no testimony that [the defendant] showed any signs of impairment during [her] encounter [with police].

2010Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury, and that was why he refused to take a field sobriety test, was manifestly unreasonable. 7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not “deprive[] the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2010See Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995) (“We see very little difference between evidence of refusal to take a breathalyzer test and refusal to take a field sobriety test”); Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 61-62 (1998); Commonwealth v. Ranieri, 65 Mass. App. Ct. at 371-373 .

2008It is well settled in Massachusetts that a defendant’s refusal to submit to a blood alcohol or field sobriety test is inadmissible at trial. 7 See Commonwealth v. Blais, supra at 299-300 ; Commonwealth v. Zevitas, 418 Mass. 677, 683-684 (1994).

2008See Commonwealth v. Perrot, 407 Mass. 539, 548-549 (1990).

2005He was not required to pose for identification purposes, Commonwealth v. Burke, 339 Mass. 521, 534-535 (1959), rev’d on other grounds, Commonwealth v. Beldotti, 409 Mass. 553 (1991); to subject himself to a field sobriety test, Commonwealth v. Brennan, 386 Mass. 722, 780 (1982); or to provide a handwriting exemplar, Commonwealth v. Buckley, 410 Mass. 209, 214-216 (1991).

2005He was not required to pose for identification purposes, Commonwealth v. Burke, 339 Mass. 521, 534-535 (1959), rev’d on other grounds, Commonwealth v. Beldotti, 409 Mass. 553 (1991); to subject himself to a field sobriety test, Commonwealth v. Brennan, 386 Mass. 722, 780 (1982); or to provide a handwriting exemplar, Commonwealth v. Buckley, 410 Mass. 209, 214-216 (1991).

2004The same reasoning has applied to exclude evidence of a defendant’s refusal to participate in a field sobriety test, Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995); evidence of a defendant’s refusal to let his hands be swabbed for the presence of gunpowder residue, Commonwealth v. Lydon, 413 Mass. 309, 313-315 (1992); evidence of a defendant’s refusal to turn over sneakers for comparison with prints at a crime scene, Commonwealth v. Hinckley, 422 Mass. 261, 264-267 (1996); and evidence of a defendant’s failure to appear at a police station for fingerprinting, Commonwealth v. Conkey, su

2004The same reasoning has applied to exclude evidence of a defendant’s refusal to participate in a field sobriety test, Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995); evidence of a defendant’s refusal to let his hands be swabbed for the presence of gunpowder residue, Commonwealth v. Lydon, 413 Mass. 309, 313-315 (1992); evidence of a defendant’s refusal to turn over sneakers for comparison with prints at a crime scene, Commonwealth v. Hinckley, 422 Mass. 261, 264-267 (1996); and evidence of a defendant’s failure to appear at a police station for fingerprinting, Commonwealth v. Conkey, su

2001See Commonwealth v. Shea, 356 Mass. 358, 361 (1969) (denying motion to strike officer’s testimony after evidence of his lack of knowledge and skill in administering breathalyzer tests was demonstrated on cross-examination).

2000See id. at 297-298 , quoting from Ohio v. Robinette, 519 U.S. 33, 39 (1996).

1995See Commonwealth v. Ayre, 31 Mass. App. Ct. at 20-21 . 2.

1995Terry v. Ohio, 392 U.S. 1, 29 (1968).