Commonwealth v. Lopes

• Decision Date: 29 March 2011
• Docket Number: SJC–10731.
• Citation: 944 N.E.2d 999,459 Mass. 165
• Parties: COMMONWEALTHv.Victor M. LOPES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 165

944 N.E.2d 999

COMMONWEALTH

v.Victor M. LOPES.

SJC–10731.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Dec. 7, 2010.Decided March 29, 2011.

Kimberly Wittenberg Lurie, Canton, for the defendant.Suzanne D. McDonough, Assistant District Attorney, for the Commonwealth.Present: IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.CORDY, J.

In this case, we consider the appeal of Victor M. Lopes from his convictions of operating a motor vehicle while under the influence of intoxicating liquor in violation of G.L. c. 90, § 24(1) ( a ) (1), and negligent operation of a motor vehicle on a public way in violation of G.L. c. 90, § 24(2) ( a ). We are presented with the question whether the admission in evidence of a consent form without redaction of language indicating that Lopes was notified of his right under G.L. c. 263, § 5A (§ 5A), to receive an independent medical examination was a violation of his privilege against self-incrimination as provided in art. 12 of the Massachusetts Declaration of Rights, or otherwise amounted to prejudicial error. We conclude that it was neither. However, the evidence of notification of the right embodied in § 5A was not relevant to any issue of fact for the jury, nor did it bear any relation to the weight or credibility of the results of a blood alcohol content test admitted in evidence. As such, it would have been better practice to have redacted the form before it was entered in evidence and presented to the jury.

1. Background.¹ On the morning of June 20, 2006, Lopes drove a Nissan Pathfinder sport utility vehicle in reverse, traveling northbound in a southbound lane on Main Street in Brockton. A police officer pressed the air horn in his cruiser to alert Lopes that oncoming traffic was approaching. Lopes brought his vehicle to a stop, nearly striking an approaching automobile. The officer activated his siren, and Lopes pulled his vehicle into a nearby parking spot. The officer asked Lopes to produce his driver's license and vehicle registration, and Lopes stated that he did not have either. The officer smelled an odor of alcohol on Lopes's breath. Lopes told the officer that he had been at a friend's house watching a televised World Cup soccer match earlier in the morning, ate a meal, and drank some beer and wine. Lopes insisted that he was not intoxicated and offered to take a field sobriety test. The officer asked Lopes to perform the “alphabet” test—a recitation of the English-language alphabet from the letter A to the letter M, but he first inquired of Lopes, whose native language is Portuguese, whether he knew the English alphabet. Lopes responded that he did. Lopes then recited the alphabet from A to E or F before stopping. His second attempt to recite the alphabet also ended in failure.²

Next, the officer instructed Lopes to perform the “one-leg stand” test. The officer first demonstrated this test by standing with one foot up, placing his hands at his sides, and counting to thirty. Lopes attempted the same, but, according to the officer, lifted his arms off his hips several times and lost his balance before he counted to “thirteen.” Last, the officer asked Lopes to perform the “finger-to-nose” test, requiring him to close his eyes and attempt to draw the tip of his index finger to his nose with one hand, and then the other. The officer testified that as soon as Lopes closed his eyes, he nearly fell to the ground. At this point, the officer placed Lopes under arrest and transported him to the police station.

At the police station, a sergeant sought Lopes's consent to administer a chemical analysis test of his breath to determine the alcohol content in his blood (breathalyzer test). The sergeant was certified by the Commonwealth to perform the breathalyzer test, and as required by statute, he read Lopes various rights attendant to the performance of such a test. See, e.g., G.L. c. 90, § 24 (consequences of failure or refusal to submit to breathalyzer test); G.L. c. 263, § 5A (right to independent medical examination); G.L. c. 276, § 33A (right to use telephone). These rights were also written in English on a form used by the Brockton police department labeled “Statutory Rights and Consent Form” (consent form). Quoting the language of § 5A, the consent form advises:

“A person held in custody at a police station or other place of detention, charged with operating a motor vehicle while under the influence of intoxicating liquor, shall have the right, at his request and at his expense, to be examined immediately by a physician selected by him. The police official in charge of such station or place of detention, or his designee, shall inform him of such right immediately upon being booked, and shall afford him a reasonable opportunity to exercise it. Such person shall, immediately upon being booked, be given a copy of this section unless such a copy is posted in the police station or other place of detention in a conspicuous place to which such person has access.”

The consent form also explains the consequences of refusing to submit to a breathalyzer test (suspension of driver's license) and of registering a blood alcohol content by percentage of body weight higher than .08, which is a criminal violation of G.L. c. 90, § 24(1) ( a ) (1).³ At its end, the consent form includes boxes denominated “Yes” and “No” for a suspect to check, indicating consent or refusal of consent for submission to a breathalyzer test.

Lopes checked the “Yes” box on the form, indicating consent to the administration of a breathalyzer test, and signed his name on the line provided. The test was performed and measured Lopes's blood alcohol content at .25 per cent—.17 per cent points higher than the legal limit. See G.L. c. 90, § 24. Lopes was charged with operating a motor vehicle while under the influence of intoxicating liquor (OUI) in violation of G.L. c. 90, § 24(1) ( a ) (1), and negligent operation of a motor vehicle on a public way in violation of G.L. c. 90, § 24(2) ( a ).

At trial, the breath test analysis and records memorializing the periodic accuracy testing of the breathalyzer machine were admitted in evidence, see Commonwealth v. Barbeau, 411 Mass. 782, 786, 585 N.E.2d 1392 (1992), as was a videotape of the entire booking process, including Lopes's performance of the breathalyzer test.⁴ The judge also permitted the Commonwealth to introduce in evidence the entire consent form. Lopes's attorney objected to the admission of the first clause of the form (advising Lopes of his § 5A right to obtain a medical examination by an independent physician) and requested its redaction. He argued that admission of language explaining this right, coupled with the fact that no independent examination would be offered in evidence, would make it evident to the jury (by implication) that Lopes declined to avail himself of that right. This combination of facts, defense counsel argued, created an inference of Lopes's consciousness of guilt in violation of his privilege against self-incrimination in art. 12.

The jury returned verdicts of guilty of OUI and negligent operation of a motor vehicle. It was Lopes's fifth OUI conviction, and he was sentenced to two and one-half years in a house of correction, with an additional year to serve on and after that sentence for the negligent operation of a motor vehicle. Lopes appealed, and we granted his application for direct appellate review.

2. Discussion. The arguments that Lopes presents on appeal are that the admission of the consent form without redaction of the portion notifying him of the right under § 5A to an independent medical examination (1) violated his privilege against self-incrimination under art. 12; and (2) constituted prejudicial error where it was not relevant to any contested issue at trial. We address each in turn.

a. Self-incrimination. Article 12 provides in part that no person shall “be compelled to accuse, or furnish evidence against himself.” It protects against the admission in a criminal proceeding of evidence that is (1) made under compulsion from the government and (2) “testimonial or communicative” in nature. Commonwealth v. McGrail, 419 Mass. 774, 777–778, 647 N.E.2d 712 (1995). Commonwealth v. Brennan, 386 Mass. 772, 776–777, 438 N.E.2d 60 (1982). We have stated that, although the privilege against self-incrimination under art. 12 is broad, it protects only against the compulsion of communications or testimony and not against the production of real or physical evidence, such as fingerprints, photographs, lineups, blood samples, handwriting, and voice exemplars. See id. at 776, 780, 438 N.E.2d 60 (evidence of breathalyzer test results and field sobriety tests not communicative to the extent necessary to evoke self-incrimination privilege). See also Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). On the other hand, “testimonial” evidence is evidence that “reveals the subject's knowledge or thoughts concerning some fact.” Commonwealth v. Brennan, supra at 777–778, 438 N.E.2d 60. See United States v. Wade, 388 U.S. 218, 223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

In Opinion of the Justices, 412 Mass. 1201, 1211, 591 N.E.2d 1073 (1992), we rendered an advisory opinion to the Senate where we opined that the admission of evidence of a defendant's refusal to consent to a breathalyzer test would be violative of this constitutional privilege because (1) evidence of refusal is clearly compelled by the government under a statutory scheme where the defendant must provide an immediate response to a police request for consent or refusal of consent to a breathalyzer test, and if he refuses, his driver's license is automatically suspended, G.L. c. 90, § 24(1) ( f ); and (2) a refusal to consent to a breathalyzer test is testimonial in nature and communicates the defendant's consciousness of his own guilt. We said the refusal reveals the defendant's inculpatory...