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Vanhouton v. Com.3/3/1997
Motor Vehicle, Operating under the influence. Constitutional Law, Double jeopardy, Admissions and confessions, Self-incrimination. Evidence, Field sobriety test, Admissions and confessions.
GREANEY, J. The defendant, Scott Vanhouton, is charged in the Superior Court with operating a motor vehicle while under the influence of intoxicating liquor, fifth offense. G. L. c. 90, § 24 (1) (a) (1). He filed a motion to dismiss the indictments on the ground of double jeopardy, which was denied. The defendant thereafter filed a motion to suppress the results of field sobriety tests that had been administered to him. He argued, among other issues, that requiring him to take the tests violated his privileges against self-incrimination as secured by the Fifth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution. An evidentiary hearing was held on the motion to suppress, after which the Judge made findings of fact and rulings of law. The Judge denied the motion to suppress with respect to evidence of the defendant's performance on the heel-to-toe and the one-legged standing tests, but he allowed the motion with respect to evidence of the defendant's performance on the alphabet recitation test. A single Justice of this court granted the applications of the defendant and the Commonwealth to pursue interlocutory appeals from the orders on the motion to suppress, see Mass. R. Crim. P. 15 (b) (2), 378 Mass. 882 (1979); G. L. c. 278, § 28E, and those appeals were consolidated with the defendant's appeal from the denial of his motion to dismiss. We conclude that the motion to dismiss was properly denied. We also conclude that the Judge correctly denied the motion to suppress with respect to the evidence of the heel-to-toe and one-legged standing tests, but that he erred in allowing that motion with respect to evidence of the alphabet recitation test.
The facts found by the Judge on the motion to suppress may be summarized as follows. On the night of September 21, 1994, Officer Daniel McNeil of the Salisbury police department was on duty in a patrol car in Salisbury Center. The area was well lit. At about 11:50 P.M., Officer McNeil observed a white automobile, which was being driven erratically, make a left turn in a jerking manner. The officer followed the automobile for about 150 yards and observed it drift left to right in its own travel lane. Officer McNeil stopped the automobile and asked the driver, who was identified as the defendant, to show his license and registration. The defendant produced a valid driver's license, but could not locate his registration, which was in his lap. The officer detected a strong odor of alcohol and also noticed that the defendant's eyes were bloodshot.
After having him step out of the car, Officer McNeil asked the defendant, who, according to the findings, "appeared on the surface to be in good shape," to perform field sobriety tests. The defendant was not advised that he could refuse to take the tests. The defendant was not able to perform the heel-to-toe test, staggering to the right on the first step. The defendant then failed the one-legged standing test. Finally, when asked to recite the alphabet, the defendant could not complete the test, and his attempt to do so was marked by slurred speech. Officer McNeil, who had watched the defendant's efforts from about three to four feet away, then placed the defendant under arrest for operating a motor vehicle while under the influence of intoxicating liquor.
The Judge extensively discussed his view of the law in connection with the rulings on the motion to suppress. We shall refer to the pertinent rulings as we discuss the issues raise
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