Commonwealth v.

Curley
Published: November 1, 2010
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COMMONWEALTH vs. James M. CURLEY.

No. 09-P-1463.
April 9, 2010. - October 25, 2010.
Motor Vehicle, Operating under the influence. Evidence, Breathalyzer
test. Constitutional Law, Self-incrimination, Breathalyzer test.

COMPLAINT received and sworn to in the Marlborough Division of

the District Court Department on September 19, 2008.

The case was tried before Jonathan Brant, J.

Adriana Contartese for the defendant.

Erin M. Bell, Assistant District Attorney, for the Commonwealth.

Present: Berry, Vuono, & Hanlon, JJ.

HANLON, J.

The defendant was convicted after a jury trial of operating a motor

vehicle while under the influence of intoxicating liquor in violation of
G.L. c. 90, § 24(1)(a )(1). [FN1] On appeal, he argues that the trial
judge erred in permitting the Commonwealth to introduce testimony
about his failed efforts to take a breathalyzer test. We affirm.

Background. The jury could have found the following: Police Officer
Craig Perry saw the defendant make an illegal right turn through a
red light on Main Street in the town of Hudson at approximately 3:00
P.M. on September 18, 2008. When Officer Perry turned on his blue
lights, the defendant accelerated and drove away; he stopped a short
time later in a parking lot. The defendant told the officer that he was
coming from a local bar, but he initially denied having anything to
drink. [FN2] Perry observed the defendant with red and glassy eyes;
he could smell an odor of alcohol, and the defendant's speech was
slurred. The officer called for assistance, and he asked the defendant
to perform certain field sobriety tests. The defendant agreed but,
according to Officer Perry, his performance was "not too good"; in
fact, the officer opined that the defendant failed all of the tests and
that he was too impaired by alcohol to drive. The defendant was then
arrested and taken by another officer, Officer John Donovan, to the
police station. [FN3]

At the police station, the defendant was given an opportunity to take a

breathalyzer test. Sergeant Christopher Shea, the patrol supervisor,
testified that, when asked to take the test, the defendant responded
with questions about the effects of alcohol, whether they depended
on a person's body weight and when he had eaten, and the "timing of
first and last drinks." [FN4] Sergeant Shea did not answer the
questions; he offered the defendant a consent form for the test, and
the defendant continued to question him. Eventually, the defendant
said that he wanted to take the test, but he wanted a drink of water
first. Shea explained that the procedure did not permit him to take
anything by mouth before taking the test. The defendant then agreed
to take it, and he signed the consent form.

Officer Donovan instructed the defendant "to blow into the

mouthpiece with a deep breath with his lips sealed around ... the
edge of ... the mouthpiece so that the sample could go into the
machine, and he [the defendant] kept blowing with his mouth open so
the air would not go into the machine." Donovan told the jury that, if
the machine does not get enough of a breath sample, it will not give a
reading. Both Donovan and Shea testified that the defendant went
through the process four times, each time blowing in the same way,
and never producing a reading.

After the test process, the defendant began to complain that he was
going "to be going into a diabetic shock." The arresting officer, Perry,
who had been trained as a fire fighter and an emergency medical
technician, did not see any of the symptoms that he had been trained
to look for, nor did Sergeant Shea. Nevertheless, an ambulance was
called; paramedics arrived, and the defendant told them that his
complaint was "dehydration." He was transported to a local hospital
at approximately 4:30 P.M.; Officer Perry accompanied him to the
hospital because he was still in custody.

At the hospital, the defendant reiterated that he had low blood sugar;
however, it was the opinion of the paramedics that "his blood sugar
was fine," and the hospital staff then "did a test for dehydration," and
gave him "one bag of intravenous fluid." During the hour that the
defendant was at the hospital, he made a telephone call to his
brother. Officer Perry overheard the defendant's side of the
conversation and testified he heard him say "he's in the hospital, he
got nervous--he got pulled over by the police, he was nervous to take
the test so he pulled a fast one, and then he laughed."

When the defendant was returned to the station, he demanded to

take a breathalyzer test. Shea told him that the time for the test was
over but he re-advised him of his rights under G.L. c. 263, § 5A. [FN5]
In response, the defendant became argumentative, threatening, the
officer testified, to "drive a car drunk again."

The defendant testified that he had gone to see his dentist in the
afternoon.
[FN6] He then went for lunch by himself at a Chinese restaurant and had a "Ma
drove to leave a check with his attorney. [FN7] He then drove to meet his broth
Yours and Mine." He had a drink called a "Sea Breeze" and left after ten minut
stopped him soon afterwards, and he acknowledged making an illegal right turn

The defendant testified that he was nervous during the field sobriety
tests but he believed that he performed them well. At the police
station, he told the police officers that his lips were cracked and dry
and he would need "a drink of water or at least some Chapstick ... if
they wanted me to blow on that thing." He denied making any
complaint about his blood sugar. His request for water was refused
and, eventually, he was transported to a hospital and given
intravenous fluids. He admitted speaking to his brother from the
hospital and telling him that he had pulled "a fast one," an expression
he testified referred to his illegal right turn on a red light. He did not
disagree with the officer's description of him as laughing, saying, "I
did not feel in any way that I was impaired to a point where I was
going to, what happened happened, so I ... probably wasn't taking it
as serious as I should have. I was in a good mood, ... like I say, I had
a coupla drinks in me, uh, I wasn't worried, I just wasn't worried, you
know." Other than saying that he was dehydrated and his lips were
chapped, the defendant never specifically described what happened
when he tried to take the test.

Discussion. The defendant argues that admitting evidence of his

failed breathalyzer attempts violated his right against self-
incrimination because the failed attempts were tantamount to a
refusal, citing Opinion of the Justices, 412 Mass. 1201, 1210-1211
(1992). [FN9]

It is well settled that evidence of a defendant's refusal to take a

chemical breath test offered by a police officer is not admissible
against him in a trial for operating under the influence of intoxicating
liquor. See Opinion of the Justices, 412 Mass. at 1211, where the
court reasoned that "such refusal evidence is both compelled and
furnishes evidence against oneself ... [and] therefore would violate
the privilege against self-incrimination of art. 12" of the
Massachusetts Declaration of Rights. See also G.L. c. 90, § 24(1)(e )
[FN10]; Commonwealth v. Healy, 452 Mass. 510, 513 (2008) ("It is well settled
a defendant's refusal to submit to a blood alcohol or field sobriety test is inadm
Commonwealth v. Ranieri, 65 Mass.App.Ct. 366, 370-371 (2006). [FN11]

The underlying rationale for this holding is that "a defendant's refusal
is the equivalent of his statement, 'I have had so much to drink that I
know or at least suspect that I am unable to pass the test.' ... Based
on this analysis, evidence of a refusal to submit to a requested
breathalyzer test is testimonial in nature." Opinion of the Justices,
412 Mass. at 1209. Such a statement is compelled, the court
reasoned, by the choice ordinarily facing such a defendant. "The
accused is thus placed in a 'Catch-22' situation: take the test and
perhaps produce potentially incriminating real evidence; refuse and
have adverse testimonial evidence used against him at trial." Id. at
1211.

In this case, the defendant did not refuse to take the breathalyzer
test; had he done so, evidence of that refusal would have been
inadmissible against him. Instead, he signed a form indicating that he
consented to take the test.
[FN12] What followed--a series of physical actions--was properly the subject of
officer's testimony. This is not the "Catch 22" situation that gave rise to the cou
of the Justices, supra--one in which a criminal defendant has no choice but to p
evidence against himself. This defendant had a choice that would not have inc
he could have refused to take the breathalyzer test. [FN13] Instead, he chose t
form. Thereafter, the jury could have inferred from his actions, as the Common
was trying to avoid giving a sample while appearing to try to take the test. Acco
that the evidence was properly admitted. [FN14]

Judgment affirmed.

FN1. In a subsequent, jury-waived trial, the defendant was found guilty of

operating under the influence of intoxicating liquor, third offense. He was also f
civil motor vehicle infraction of failure to stop or yield, G.L. c. 89, § 8; this infrac
file.

FN2. Eventually, he told Officer Perry that he had had two cocktails--a "Mai Ta
-at two different locations.

FN3. Donovan also noticed an odor of alcohol, slurred speech, red and glassy
unsteady gait. The defendant told him that he had had two drinks, including a g

FN4. There was no objection to this

testimony.

FN5. General Laws c. 263, § 5A, provides an operator with the right to be exam
a physician selected by him, including the right to obtain a blood test at his own
determine his blood alcohol level.
FN6. The dentist testified that he knew the defendant, that he had filled a tooth
that he had no odor of alcohol on his breath, and that he did not appear to be in

FN7. The attorney testified that he saw the defendant briefly at 3:00 P.M. and e
pleasantries. He did not notice anything unusual about the defendant.

FN8. The bartender at Yours and Mine, who went to school with the defendant
for thirty years, testified that she served him a "Sea Breeze" and that she belie
"perfectly fine" when he walked in. She said that he stayed perhaps fifteen min
when he left.

FN9. The Commonwealth argues that the defendant did not object to the evide
offered and, therefore, that the standard of review is whether any "supposed er
substantial risk of a miscarriage of justice." Because we find no error, it is not n
whether the standard of review is substantial risk of a miscarriage of justice or
However, we note that the defendant did object to this evidence. He filed a mo
to have it excluded, as the Commonwealth concedes, and the motion judge, wh
judge, denied the motion. The defendant objected at that time, and he objected
when the evidence was offered.

FN10. General Laws c. 90, § 24(1)(e ), as amended through St.2003, c. 28, §§

3 & 4, provides, in pertinent part, "In any prosecution for a violation of paragrap
percentage, by weight, of alcohol in the defendant's blood at the time of the alle
indicated by a chemical test or analysis of his breath, shall be admissible and d
determination of the question of whether such defendant was at such time und
intoxicating liquor; provided, however, that if such test or analysis was made by
a police officer, it was made with the consent of the defendant.... Evidence that
or refused to consent to such test or analysis shall not be admissible against h
proceeding ..." (emphasis supplied).

FN11. The court has extended the same analysis to a refusal to perform field s
Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995) ("We see very little
evidence of refusal to take a breathalyzer test and refusal to take a field sobrie
Commonwealth v. Grenier, 45 Mass.App.Ct. 58, 61-62 (1998); Commonwealth
 Mass.App.Ct. at 371-373.

FN12. In another context, this court has held that "[t]he consent to take the test
contemplates the taking of a valid test (one that would be admissible in court)."
Sabourin, 48 Mass.App.Ct. 505, 506
(2000).

FN13. This case is also distinguishable from cases where the defendant's state
ability to do field sobriety tests were deemed testimonial evidence revealing his
his sobriety. See Commonwealth v. Grenier, 45 Mass.App.Ct. at 61-62 ("Althou
excuse that he was not trained to do the test, the jury would have been warran
thought he could not do the test because he had had too much to drink").

FN14. We decline to address the defendant's remaining and unsupported argu

of his "attempts" to take the breathalyzer test forced him to testify and that, bec
driver's license consequences with the registrar for not completing the test, it w
that the evidence was used against him in his criminal trial. See Mass.R.A.P. 1
367 Mass. 921 (1975).

Detailed Information
Commonwealth v.
Case Name
Curley
Case # 11-215-10
Court Appeals Court
Decision
25-Oct-10
Date