How I Try a Massachusetts OUI Case After a Breathalyzer Refusal

A driver who refuses the breathalyzer after an arrest faces an OUI prosecution without a breath result from the certified device. When the case contains no separate hospital or independent blood-alcohol result, the Commonwealth must prove impairment through the driving, the officer’s observations, statements, video, roadside exercises, and conduct at booking. The refusal itself cannot be used as evidence of guilt at the criminal trial.

Before trial, I file a motion to exclude any evidence that the driver refused the breathalyzer. I also ask the judge to exclude testimony, forms, audio, and portions of the booking video that would reveal the refusal indirectly. At trial, I commit the officer to the contemporaneous police report and then examine the entire encounter in chronological order. The roadside exercises usually occupy only a few minutes. The officer often spent much longer speaking with the driver, watching the driver move, transporting the driver, and completing the booking process. When the report records no slurred speech, confusion, loss of balance, difficulty walking, or other concerning conduct during that longer period, I put those omissions directly before the jury.

That is how I try the case.

I Review the Complete Record Before Trial

I begin with the police report, the Registry refusal report, dispatch records, cruiser and body-camera video, booking video, photographs, roadside-exercise paperwork, and every form used at the station. I put the events in time order and determine exactly how long the officer observed the driver. This review is part of how I prepare a Massachusetts criminal case for trial.

The narrative police report and the Registry refusal report serve different purposes and may describe the incident differently. I compare them before trial for inconsistencies bearing on the officer’s recollection and account. I do not disclose the Registry refusal report to the jury without a ruling and the necessary redactions because the document itself reveals the protected refusal.

I then separate three questions that are sometimes blurred together in the paperwork. Did the driver refuse the breathalyzer? Did the driver consent but fail to provide an adequate sample? Did a medical or mechanical problem prevent completion of the test? Evidence of an inadequate sample after consent is not automatically protected as refusal evidence. Commonwealth v. Curley, 78 Mass. App. Ct. 163, 167 to 168 (2010); Commonwealth v. Daigle, 99 Mass. App. Ct. 107, 112 (2021). I resolve that issue before I build the trial strategy.

The videos also show what the report leaves out. I compare every claimed sign of impairment with the driver’s conduct at the window, during the roadside exercises, on the walk to the cruiser, during transport, in the sallyport, and throughout booking. That comparison becomes the cross-examination.

I Exclude Refusal Evidence Before the Jury Is Selected

General Laws c. 90, § 24(1)(e) prohibits the Commonwealth from using a refusal against the defendant in the criminal trial. Article 12 of the Massachusetts Declaration of Rights independently protects the decision from use as testimonial evidence. Opinion of the Justices, 412 Mass. 1201, 1210 to 1211 (1992); Commonwealth v. Zevitas, 418 Mass. 677 (1994). Commonwealth v. McGrail, 419 Mass. 774, 779 to 780 (1995), applies the same protection to a refusal of field sobriety exercises.

I file a written motion in limine before jury selection. I ask the judge to exclude the refusal, any statement that amounts to a refusal, the implied-consent exchange, and any indirect testimony that would reveal what happened. I do not wait for an officer to disclose it in front of the jury. A curative instruction cannot reliably remove the inference after the jury hears that the driver declined the test.

I inspect the booking video frame by frame. If the breath-testing device, a refusal form, or the implied-consent discussion appears, I ask the judge to crop, obscure, mute, or redact that portion while preserving the driver’s admissible conduct. In Commonwealth v. Derosier, 103 Mass. App. Ct. 518 (2023), jurors saw a breath-testing device in the booking video and later asked whether a test had been offered or refused. The case shows why the video must be addressed before trial.

I also address other recurring evidentiary limits. Under Commonwealth v. Sands, 424 Mass. 184, 186 to 187 (1997), the Commonwealth needs the required scientific foundation for horizontal gaze nystagmus. Under Commonwealth v. Canty, 466 Mass. 535, 544 (2013), an officer may offer an opinion about sobriety or level of intoxication but may not tell the jury that alcohol diminished the defendant’s ability to operate safely. The officer may describe the roadside movements but should not replace those observations with a supposed passing or failing score. The detailed field sobriety defense depends on what the officer instructed, demonstrated, observed, and recorded.

I Address the Independent-Examination Right Before Trial

General Laws c. 263, § 5A gives a person held in custody and charged with OUI the right, upon request and at the person’s expense, to an immediate examination by a physician selected by that person. Police must inform the person of the right immediately upon booking, supply a copy of the statute unless it is conspicuously posted, and provide a reasonable opportunity to exercise it.

I review the booking materials and video to determine whether police complied, whether the driver requested an examination, and whether police frustrated the request. A supported Section 5A violation requires a pretrial motion, not merely a few questions during cross-examination. Commonwealth v. Hampe, 419 Mass. 514 (1995); Commonwealth v. Baez, 106 Mass. App. Ct. 219 (2025).

I Decide Whether to Request the Instruction on the Missing Test

I do not decide before trial whether to request an instruction concerning the absence of breath-test evidence. I decide after I hear the Commonwealth’s evidence.

In Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001), the Appeals Court approved an instruction telling jurors that no breath-test evidence had been introduced, that several reasons could explain its absence, and that they must not speculate. In Commonwealth v. Wolfe, 478 Mass. 142, 146, 148 to 150 (2017), the Supreme Judicial Court recognized that the instruction can protect the defendant or create a question the jury had not considered. The judge ordinarily should not give it unless the defense requests it.

If nothing has directed the jury toward a missing test, I do not introduce the subject through an instruction. If the booking video, testimony, or another circumstance has made the absence obvious, I may request the approved instruction. The evidence presented at trial controls that decision.

I Open on the Officer’s Account

I open on the evidence the Commonwealth chose to present. I do not mention an absent test, and I do not invite the jury to speculate about one. I tell the jury that the case will turn on what the officers observed, what they recorded, and what the video shows during the entire encounter.

I also do not claim that the driver complied with every police request. In Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 104 (2011), the defense created a misleading impression that police had not asked the defendant to perform field sobriety exercises. That opened the subject of the refusal. I describe cooperation accurately and make only the promises the evidence will prove.

I Commit the Officer to the Police Report

I do not begin by arguing that the officer was wrong. I begin by defining the officer’s own reporting standard.

I establish the officer’s report-writing training, when the report was prepared, why officers prepare reports promptly, and how the officer used the report to prepare for trial. The officer was investigating impaired operation. The officer was trained to watch for signs of impairment. The report was supposed to preserve the material observations supporting the arrest. The prosecutor, defense lawyer, and court would later rely on it. The officer reviewed it before testifying.

I then identify the observations that would have been material: slurred speech, unsteadiness, confusion, inability to follow directions, difficulty walking, trouble handling ordinary objects, or another sign of impairment during transport or booking. I secure the officer’s agreement that those observations belonged in the report.

I lock the officer into those commitments before asking about any disputed observation. The sequence matters. Once the officer agrees that the report should contain the material signs of impairment observed during the investigation, the jury can measure the trial testimony against the account written while the events were fresh.

If the officer adds a concerning detail for the first time at trial, I establish that the officer had the detail in mind when the report was prepared, considered it relevant to impaired operation, and did not record it. I do not ask the officer to explain the omission. That question invites a repair. I establish the reporting standard and the omission, then move to the next subject.

I Cross-Examine the Entire Encounter

The Commonwealth usually concentrates on the shortest part of the investigation: the initial contact and the roadside exercises. I examine the entire interaction. Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 417 (2014), identifies driving performance, appearance, demeanor, field sobriety performance, and conduct at booking as evidence bearing on impaired operation.

I establish the exact duration of the encounter and proceed in chronological order.

The driving and stop. I address the reason for the stop, the distance observed, the response to the blue lights, the use of a signal, the stopping location, and whether the vehicle struck anything or endangered anyone.

The first conversation. I establish what the officer asked and whether the driver gave responsive answers. I address orientation to place, destination, and direction of travel. If the officer claims slurred speech, I identify the precise words, the duration of the conversation, and where that observation appears in the report.

The license and registration. Producing those documents requires the driver to locate a wallet or glove box, distinguish the correct items, handle them, and pass them to the officer. Officers routinely record fumbling or difficulty when it occurs. I establish what the driver did and whether the report identifies any problem.

The exit and walk. I address the seat belt, door handle, movement from sitting to standing, surface, lighting, distance, and walk to the testing location. I ask whether the driver needed assistance, leaned on the vehicle, stumbled, or failed to follow a direction. Then I compare the answers with the report and video.

The roadside exercises. Direct examination emphasizes the movements the officer associated with impairment. I establish the instructions the driver followed and everything the driver performed correctly: assuming the instructional position, walking in the correct direction, counting aloud, completing the turn, returning, raising the requested foot, and maintaining balance. The separate article on cross-examining the field sobriety opinion addresses the manual, testing conditions, demonstrations, and scoring criteria in detail.

The walk to the cruiser and transport. I address how the driver walked after the arrest, entered the cruiser, sat during transport, answered questions, and carried on any conversation. If the driver did not become ill, fall asleep, speak incoherently, or require assistance, I establish each fact. I then establish that the officer recorded no such concern.

The sallyport and station. A handcuffed person must leave the cruiser, cross the sallyport, pass through doors and corridors, and reach the booking area. I ask whether the driver completed those movements without falling, stumbling, or receiving physical assistance.

Booking. Booking commonly lasts much longer than the roadside exercises. The driver answers questions about name, address, date of birth, employment, medical conditions, and an emergency contact. The driver may remove jewelry, a belt, and shoelaces, read forms, sign documents, use the telephone, sit, stand, and walk while officers observe. I identify the length of that recorded interaction and every opportunity the officers had to observe speech, comprehension, balance, coordination, and demeanor.

Only after examining the complete encounter do I return to the report. It may describe slurred speech once at the roadside but never record slurred speech during transport or booking. It may describe unsteadiness during an exercise but never record difficulty walking to the cruiser, entering the station, or moving through booking. It may claim confusion at the window but record no incorrect or incoherent answer during the longer station interaction.

That silence is the point. The officer had a long interaction with the driver, knew which signs of impairment to look for, and wrote a report for the prosecution. The report records no concerning observation during most of the encounter.

I do not ask why the later observations were omitted. I establish the officer’s reporting standard, the extended opportunity to observe, and the absence of any such observation from the report. The omission does not conclusively prove that an event did not occur. It supports the direct argument that a material observation that naturally belonged in the contemporaneous report was not recorded.

I Close on the Recorded Encounter

I close in the same order as the cross-examination. I compare the brief roadside portion with the much longer period that followed. I identify the normal driving decisions, responsive answers, coordinated movements, completed tasks, and coherent conduct established through the officer and the video.

Then I return to the report. The officer was trained to record material signs of impairment and prepared the report while the events were fresh. The officer observed the driver during transport and booking but recorded no continuing slurred speech, no confusion, no loss of balance, no difficulty walking, and no inability to complete ordinary tasks. The Commonwealth cannot replace that contemporaneous silence with a broader account at trial and still satisfy its burden beyond a reasonable doubt.

I do not mention the refusal. I do not ask the jury to speculate about a missing test. I ask the jury to decide the case on what the officer observed, what the officer recorded, and what the video shows.

The Registry Suspension Is Separate

The refusal suspension and the criminal prosecution present different questions. A favorable criminal disposition does not automatically end the administrative suspension. The complete breathalyzer decision and license analysis explains the refusal periods, prior-offense definition, rules for drivers under 21 and commercial drivers, Registry hearing, and restoration procedure. The separate page on OUI suspensions and reinstatement addresses post-disposition suspensions and hardship eligibility.

Cases Involving Blood Evidence or an Alcotest Result

A hospital blood result or a police-directed blood draw changes the evidence and requires the separate breath-test and blood-alcohol science analysis. A pure refusal case contains no breath result to exclude under Commonwealth v. Hallinan and the Alcotest 9510 remedy.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office represents defendants charged with OUI in the Boston Municipal Court and District Courts throughout Eastern Massachusetts. Call 617.936.0201 for a free and confidential consultation.