Criminal Defense Blog

Does a Jury Hear about a Breath Test Refusal in Massachusetts?

By Michael A. Tucker

You have been arrested for Operating a Motor Vehicle under the Influence of Alcohol. In Massachusetts, that is OUI. You exercised your right not to take the breath test. That seems a reasonable choice unless perhaps you had nothing to drink of any kind at all. After all, the breath and drug test results have not proven to be especially reliable in Massachusetts in recent years. You have a constitutional right not to incriminate yourself by testimony or voluntary access to physical evidence. However, that refusal comes at the cost of a burdensome additional license suspension. Now you have to go to court and are wondering what if anything the jury will hear about the breath test.

Well, in Massachusetts, the law has just shifted. The case is known as "Commonwealth v. Wolfe" and the highest court in the Commonwealth has just sent us a message on October 13, 2017. For a long time it has been true that a refusal of the breath test is not something that the jury should hear testimony about. Because you have the right to refuse, there should be no negative consequences at trial for using your constitutional right not to incriminate yourself. This is especially true when the breath test results and drug lab results have been consistently attacked for accuracy. Just this week however, the Supreme Judicial Court has preserved a question for you to puzzle through with your attorney at trial.

It used to be pretty simple. Your breath test refusal did not come before a jury unless you or your attorney made the mistake of mentioning it during the trial. Even then, there might be a hearing and a ruling by the judge sitting at the trial. Now, you and your attorney must decide whether to ask the judge to make the jury pay attention to the fact that there are no breath test results in your case and they are not permitted to take that into their deliberations. This is a step beyond the procedure that was available before. Do you want to highlight for the jury that they cannot base a verdict on evidence that they have not heard? That is a tricky decision and one best made by experienced trial counsel after the jury has been seated and observed.

Isn't it a simple question? No. Maybe your jury, or some of its crucial members, did not seem to pay attention to the fact that there is no breath test. Do you want to point out to them that it does not exist? Most jurors are familiar with the "Miranda" rights and the breath test machine in a simple 'Operating under the Influence' case. Maybe, instead, have they been waiting to hear testimony related to that test? In that case, it may be helpful to let them know it is not lawful for them to speculate about that test. It is our choice. If we think it has been overlooked, should we inform them and risk waking them up? Should we keep quiet and not have a judge call attention to the fact that you did not take a breath test? These decisions can only be made with your lawyer in the context of your trial with a specific fact pattern and a specific jury. In fact, the decision is only best made at the very end of your trial when the trial evidence is complete and the closing arguments are getting started.

At that point, you can't Google "what should my lawyer do now?" There is no "Legal Answer" for a trial. If the case is entitled "Government vs. You", you need a good lawyer with trial experience against the government. By the way, if you do not have any funds or assets, the state will choose you a lawyer. You can't be sure who you will be assigned, but it is that important. Beyond that you are on your own. This is in your hands. YOU HAVE TO BE IN CHARGE OF GETTING A LAWYER THAT CAN HANDLE THIS PROBLEM.

When the trial evidence is concluded, your attorney should ask you, "Should I tell the judge to tell the jury that they should not pay attention to the lack of a breath test?" Does that draw too much attention to my refusal? What do you decide? Under the new case law of Commonwealth v. Wolfe, the choice belongs to you and your attorney. Make a good one.

I can help you in either Massachusetts or New Hampshire, but this new case law relates to Massachusetts. In New Hampshire your rights are different.

How Does a Drug Dog Testify?

By Michael A. Tucker

You are confused. The police show up at your apartment. While you are handcuffed and sitting on the floor they start to search. You have cooperated and they have not found any reason to make an arrest. They radio dispatch and another officer arrives, with a dog. While you are watching carefully, the dog goes through the entry hall and each room. Aside from what seems to be random barking and a frequent chorus of "good boy" cheers from the police, you don't see anything suspicious in the dog's behavior.

They take you out in cuffs and to the station for booking. You don't have a lawyer yet, maybe you haven't even asked for one. When you read the police reports later, they say the dog signaled to them that there were drugs in your bedroom and in the kitchen of the apartment. The charges are serious and your attorney tells you that this is something to be worried about. You should probably expect a motion to suppress the drugs to be filed in your case and a trial will take place afterwards if the motion does not succeed.

It is simple. If the state can't get in the drugs, it can't win the case. If you get rid of the dog's testimony, you get rid of the drugs. How does the drug dog tell the judge or the jury what he smelled or how he knew it was drugs? How does your attorney cross examine a dog? What about the officer that works with the dog? The questions have to be put to the dog's handler/partner. That officer is about to tell your jury what the dog was thinking. The jury rocks forward in their seats. What will he say? How does he know? Why should we believe him?

The federal court for this jurisdiction has just handed down a case that helps answer the question. The judge in your case has to make certain that you have a fair trial. Therefore, you are entitled to know in advance whether the dog handler is going to testify as just another witness or are they going to tell the jury that he is an "expert" on drug dogs. You are entitled to know in advance the details of any training that the dog received. You should also have information about any training that the handler received. How long have they worked together? When was the last time they went to school? Has the dog made mistakes in the past? What other arrests have they made together? Were any of those cases overturned?

You are entitled to this discovery. The name of the most recent case from September 15 of 2017 is U.S. v. Naranjo-Rosario. It is a federal decision from the First Circuit that includes Massachusetts and New Hampshire. How can your lawyer defend you if he or she can't cross examine a dog? The lawyer has to get the maximum amount of discovery about the dog and the handler as far before motion or trial as he or she can. The judge and jury love dogs. Your lawyer has to convince them that this one can't be trusted. That takes facts.