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. In the ordinary refusal case, when no separate hospital or independent blood-alcohol result exists, the Commonwealth almost always must prove impairment through the manner of driving, observations by officers and civilians, statements, video, field sobriety evidence, physical evidence, and conduct at booking. The refusal itself ordinarily cannot be used at the criminal trial.

A refusal trial therefore differs from a prosecution supported by an admitted breath result. The principal questions become what the officers observed, what they recorded, what the video shows, whether the defense should request an instruction concerning the absence of test evidence, and whether the Commonwealth can prove impaired operation beyond a reasonable doubt without a breathalyzer result.

What follows is how I prepare and try that case.

Excluding Breath-Test Refusal Evidence

General Laws c. 90, § 24(1)(e) provides that evidence a defendant failed or refused to consent to a chemical test is not admissible against the defendant in a civil or criminal proceeding, subject to the statute’s express exceptions for the Registry suspension proceeding and the specified proceeding under § 24N. The prohibition ordinarily prevents the prosecutor from telling the jury that police requested a breath test and the defendant declined it.

The constitutional rule preceded the present statutory language. In Opinion of the Justices, 412 Mass. 1201, 1210 to 1211 (1992), the Justices concluded that admitting refusal evidence would violate art. 12 of the Massachusetts Declaration of Rights by forcing the driver to produce either a potentially incriminating result or testimonial evidence through the refusal. The Supreme Judicial Court applied that reasoning in Commonwealth v. Zevitas, 418 Mass. 677 (1994). Commonwealth v. McGrail, 419 Mass. 774, 779 to 780 (1995), and Commonwealth v. Blais, 428 Mass. 294, 299 to 301 (1998), apply the same principle to refusals of field sobriety exercises.

The exclusion reaches indirect testimony that would disclose the refusal and a defendant’s statement that amounts to a refusal. Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 60 (1998). It does not cover every unsuccessful attempt to provide a sample. Evidence of an inadequate sample after consent may be admissible if the Commonwealth proves the statutory and regulatory foundation. Commonwealth v. Curley, 78 Mass. App. Ct. 163, 167 to 168 (2010); Commonwealth v. Daigle, 99 Mass. App. Ct. 107, 112 (2021). I therefore determine whether the records show a refusal, an inadequate sample, a medical inability to provide one, or an incomplete testing sequence.

Motions Before Trial

I address refusal evidence in writing before jury selection. A curative instruction after the jury has learned that the defendant refused cannot reliably remove the inference.

Direct and indirect references to the refusal. I ask the judge to exclude the refusal, statements equivalent to it, and surrounding testimony that would disclose it by implication. That can include parts of the implied-consent warning or an exchange that ended when the defendant declined the test. The exclusion is not a categorical rule against every object or event associated with the testing room.

The booking video. I inspect the complete recording before trial. The video may show the breath-testing device, the implied-consent colloquy, documents that identify a refusal, or statements that reveal it. I seek the cropping, obscuring, muting, or redaction necessary to protect the statutory and constitutional rule while preserving admissible booking conduct.

In Commonwealth v. Derosier, 103 Mass. App. Ct. 518 (2023), the trial judge admitted a booking video on which a breath-testing device was visible in the background. The jury later asked whether the defendant had been offered or had refused a test. The Appeals Court affirmed the conviction and concluded that the unusual circumstances permitted an instruction on the absence of test evidence over the defendant’s objection. The court did not require exclusion of every visible device. Counsel must examine the recording and request tailored relief before the jury receives it.

Horizontal gaze nystagmus. Under Commonwealth v. Sands, 424 Mass. 184, 186 to 187 (1997), the Commonwealth must present the required scientific foundation and establish the officer’s qualifications and procedure. I address that foundation before the officer describes the examination. The broader field sobriety defense depends on the exercises, instructions, conditions, observations, and testimony.

The officer’s opinion. Commonwealth v. Canty, 466 Mass. 535, 544 (2013), permits an opinion about sobriety or the level of intoxication, but not an opinion that the defendant operated under the influence or that alcohol diminished the ability to operate safely. I ask the judge to enforce that distinction.

Descriptive testimony about the exercises. The NHTSA criteria classify blood alcohol at .08 or above at the accuracy rates the manual claims. They do not establish a formal passing or failing score. I ask the officer to describe the instructions, conditions, and movements rather than substitute a label for the observations.

The Defense Decision Under Wolfe

The decision whether to request an instruction concerning the absence of alcohol-test evidence belongs to the defense.

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 might explain its absence, and that they must not speculate. The Supreme Judicial Court later recognized that this instruction can help or harm the defendant. It prohibits an adverse inference, but it can introduce a question the jurors had not considered.

In Commonwealth v. Wolfe, 478 Mass. 142, 146, 148 to 150 (2017), the court directed judges not to give the instruction unless the defendant requests it, except in a rare factual setting that specifically directs the jury’s attention to the absence of alcohol-test evidence. The exception applied in Derosier.

I wait until I have heard the evidence before deciding. If nothing has directed the jury toward an absent test, an instruction may create speculation. If the video or testimony has raised the question, I may request the approved instruction.

The Opening Statement

I open on the evidence the Commonwealth will present. In a typical refusal case, that means the driving, the encounter at the window, the roadside observations, the exercises, the transport, and booking.

I do not announce that no breath result exists, and I do not ask the jury to infer anything from the absence of scientific evidence. Either statement risks introducing the very speculation the exclusion rule prevents.

I also avoid creating a misleading impression that the defendant complied with every police request. In Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 104 (2011), the defense suggested that police had never asked the defendant to perform field sobriety exercises. That presentation permitted refusal evidence to correct the false impression. See also Commonwealth v. Jones, 477 Mass. 307, 326 to 328 (2017). A limited and accurate description of cooperation remains available, but the defense cannot present complete cooperation when the refusal would make that description materially misleading.

Cross-Examination of the Whole Encounter

In most refusal trials, cross-examination of the officers supplies the principal defense. I prepare it as part of the work I do before trial, using the reports, recordings, dispatch records, photographs, breath-test documents, and booking materials together.

The Officer’s Training and the Police Report

I first establish how and when the officer prepared the report, the officer’s report-writing training, and the department’s standard for recording material observations. That foundation does not make a report complete as a matter of law. It permits the jury to evaluate a later detail that does not appear where it naturally would have been recorded. The omission supports a credibility argument, not conclusive proof that an event did not occur.

The Sequence from the Stop Through Booking

I then examine the encounter chronologically. In Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 417 (2014), the Appeals Court identified driving performance, appearance, demeanor, execution of field sobriety exercises, and conduct at booking as evidence bearing on impaired operation. The roadside exercises occupy only part of that sequence.

The stop itself may show controlled operation. I address the driver’s response to the lights, signal, stopping location, and any claimed difficulty. At the window, I examine whether the driver answered the questions asked and produced a license and registration. Selecting the correct documents and handling a wallet or glove box require attention and coordination. I compare any claimed difficulty with the report and video.

The exit and walk provide additional observations. I address the movement from sitting to standing, distance, surface, lighting, traffic, weather, and any need for assistance. I then examine the instructions and each roadside exercise. Direct examination often emphasizes the movements the officer associated with impairment. I also establish the instructions the driver followed, the steps completed correctly, the counting performed in order, and the balance the driver maintained.

The detailed method for cross-examining the field sobriety opinion addresses the manual, the testing conditions, the officer’s demonstrations, the scoring criteria, and the distinction between an observation and an interpretation.

The examination continues through transport and booking. The defendant may answer questions, remove personal items, read forms, sign documents, and wait for an extended period. The video permits the jury to evaluate speech, comprehension, balance, coordination, and demeanor during that longer observation.

What the Report Omits

The full sequence permits a comparison between the testimony, video, and report. A report may describe slurred speech or unsteadiness at the roadside but say nothing about speech or balance during transport and booking. The recording may show the defendant answering questions and moving normally during a much longer period.

I do not ask an unnecessary final question that invites the officer to repair the omission. I establish the officer’s training, the materiality of the observation, the later opportunities to observe the same condition, and the contents of the report. I leave the jury to compare the claimed condition with the recorded conduct.

The Police Report and the Sworn Refusal Report

A refusal file ordinarily contains at least two reports prepared for different purposes. The narrative police report describes the criminal investigation. General Laws c. 90, § 24(1)(f)(1) separately requires the officer to prepare the Registry refusal report within 24 hours on the Registrar’s form and under the penalties of perjury.

I obtain both reports and compare facts that properly bear on the officer’s recollection and consistency. The refusal report itself contains material that the jury ordinarily cannot learn. I do not display, describe, or use it before the jury without first obtaining a ruling and making the necessary redactions. The comparison may identify an admissible inconsistency, but it does not permit the defense or the Commonwealth to disclose the refusal indirectly.

The Independent Examination Under Section 5A

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, provide a copy of the statute unless it is conspicuously posted, and afford a reasonable opportunity to exercise the right. Police must not obstruct a properly asserted request. The responsibility for selecting and arranging the physician ordinarily remains with the arrested person. Commonwealth v. Lindner, 395 Mass. 144, 148 (1985).

I review the booking video and records to determine whether police gave the required notice and copy, whether the statute was posted, whether the defendant requested an examination, whether telephone access was available, and whether police frustrated the request.

The remedy depends on the case. In Commonwealth v. Hampe, 419 Mass. 514 (1995), suppression addressed a violation in a case involving breath-test evidence. In Commonwealth v. Baez, 106 Mass. App. Ct. 219 (2025), police read the right aloud but neither supplied the statutory copy nor established conspicuous posting. Because the prosecution involved a refusal and no breath result existed to suppress, the Appeals Court treated the violation as prima facie prejudice and dismissal as the presumptive remedy unless the Commonwealth rebutted that presumption under the circumstances recognized in the opinion.

A possible Section 5A violation therefore calls for a pretrial investigation and, where the record supports it, a motion. It is not merely a subject for cross-examination at trial.

The Registry Suspension and the Criminal Case

The Registry suspension is separate from the prosecution. A refusal generally produces 180 days for a driver age 21 or older with no qualifying prior offense, three years for a driver under 21 or with one qualifying prior offense, five years after two qualifying prior offenses, and lifetime after three or more. Special serious-injury and fatal-offense histories can produce separate 10-year or lifetime periods.

For this purpose, a prior offense can include a qualifying Massachusetts or out-of-state conviction, plea, admission to sufficient facts or continuance without a finding, or assignment to an alcohol or controlled-substance program for a like offense. One prior offense means the current arrest potentially presents a second-offense case. Two mean a potential third offense. Three mean a potential fourth offense.

The full breathalyzer decision and license analysis addresses drivers under 21, prior offenses, commercial drivers, serious-injury and fatal-offense histories, and the results of submitting to or refusing the breathalyzer.

A driver must request the Registry hearing within 15 days. It addresses reasonable grounds to believe the person operated under the influence on a qualifying way or place, arrest, and refusal. The driver may challenge the final Registry decision in the appropriate District Court within 30 days, but filing does not stay the suspension. Repeated inadequate samples can support an administrative refusal finding when the evidence establishes a functioning device and intentional noncompliance. Kasper v. Registrar of Motor Vehicles, 82 Mass. App. Ct. 901 (2012).

A dismissal or not-guilty finding does not automatically terminate the refusal suspension. A defendant with no remaining qualifying alcohol-related charge may, however, request restoration immediately after the favorable disposition in the court that took final action. The statute creates a rebuttable presumption in favor of restoration unless the Commonwealth proves by a fair preponderance of the evidence that restoration likely would endanger public safety. In Commonwealth v. Richards, 480 Mass. 413 (2018), the Supreme Judicial Court required the defendant to invoke that procedure immediately following the favorable disposition.

The complete OUI suspension, Registry review, restoration, and hardship-license rules appear on their own page. An eligible disposition under M.G.L. c. 90, § 24D creates a separate limited-hardship application procedure. That procedure does not follow every outcome.

The Closing Argument

I structure the closing around the evidence developed during cross-examination. I compare the initial observations with the remainder of the encounter, the officer’s conclusions with the conduct visible on the recording, and the trial testimony with the material facts recorded at the time.

I do not mention a refusal or invite the jury to speculate about an absent breath result. If I requested the Downs instruction, I permit the judge’s instruction to address the absence of test evidence without adding an argument of my own.

The Commonwealth must prove beyond a reasonable doubt that alcohol diminished the defendant’s ability to operate safely. I identify the gaps, inconsistencies, normal actions, and recording evidence without asking the jury to supply a reason for the absence of a test result.

The Breath-Test Decision and Related Evidence

The decision whether to submit is not a critical stage, and police need not provide counsel or delay the test for consultation. Commonwealth v. Brazelton, 404 Mass. 783, 785 (1989); Commonwealth v. Neary-French, 475 Mass. 167, 170 (2016). The arrested person retains the statutory telephone and § 5A examination rights.

In the criminal prosecution, a refusal ordinarily leaves the Commonwealth without a breathalyzer result and prevents use of the refusal as evidence of guilt. At the Registry, the same decision causes an immediate suspension that can last from 180 days to lifetime, depending on age and prior-offense history.

If a hospital obtained blood for medical treatment, or police directed a blood draw, the evidentiary questions differ from a pure refusal case. The site separately addresses breath-test and blood-alcohol science. A refusal also creates no breath result to exclude under Commonwealth v. Hallinan and the Alcotest 9510 remedy, although Hallinan may affect another case or an earlier result in the same client’s record.

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.