Com. v. D'Agostino11/9/1995
Motor Vehicle, Operating under the influence. Practice, Criminal, Retroactivity of judicial holding, Instructions to jury, Failure to make objection. Evidence, Blood alcohol test, Admissions and confessions. Constitutional Law, Self-incrimination, Admissions and confessions.
GREANEY, J. In Commonwealth v. D'Agostino, 38 Mass. App. Ct. 206, 646 N.E.2d 767 (1995), the Appeals Court reversed the defendant's conviction for operating a motor vehicle while under the influence of intoxicating liquor, in violation of G. L. c. 90, § 24 (1) (a) (1) (1994 ed). The Appeals Court determined that the rule announced in Commonwealth v. Zevitas, 418 Mass. 677, 639 N.E.2d 1076 (1994), in which it was concluded that a jury instruction mandated by G. L. c. 90, § 24 (1) (e) (1994 ed.), had the effect of unconstitutionally compelling an accused to furnish evidence against himself or herself, id. at 683, should be applied retroactively to the defendant's case. We granted the Commonwealth's application for further appellate review. We also conclude that the defendant is entitled to the benefit of the rule announced in the Zevitas case, and that his conviction must be reversed. In the decisions which follow, Commonwealth v. Adams, post (1995), and Commonwealth v. Koney, post (1995), we deal with other issues pertaining to the retroactivity of the Zevitas decision.
The background of this case is set forth at 38 Mass. App. Ct. at 207-208 (with one footnote omitted), as follows: "The two arresting officers testified that they had observed the defendant at the scene. Through them evidence was presented that the defendant was unsteady on his feet, his eyes were 'glossy' and 'watery,' his breath had a strong odor of alcohol, and his speech was slurred. The officers described the defendant as verbally abusive and belligerent. Each of the police officers testified that he formed an opinion, at the time of arrest, that the defendant was under the influence of alcohol. An emergency medical technician who observed the defendant at the police station in response to his request for medical treatment likewise testified that he formed the opinion that the defendant was intoxicated at the time of his arrest.
"The police officers were also permitted to testify to statements made by the defendant during the roadside stop. When asked by an officer where he was coming from, the defendant replied, 'I had a couple drinks.' One of the officers requested that the defendant perform a field sobriety test which he refused stating that he 'didn't want to take any test.'" At the Conclusion of the evidence, the Judge instructed the jury as required by G. L. c. 90, § 24 (1) (e). There was no objection to the instruction.
We turn now to the merits. In Opinion of the Justices, 412 Mass. 1201, 591 N.E.2d 1073 (1992), we advised the Legislature that proposed legislation mandating the admission of evidence of an accused's refusal to submit to a breathalyzer test of his or her blood alcohol level would violate the privilege against self-incrimination contained in art. 12 of the Declaration of Rights of the Massachusetts Constitution. Id. at 1211. In Commonwealth v. Zevitas, supra, we concluded that the instruction mandated by G. L. c. 90, § 24 (1) (e), had the effect of telling the jury, "by strong implication at least, that the defendant's blood alcohol level had not been tested, and that the reason no test was conducted was that the defendant refused to submit to such a procedure," id. at 683, presumably because the defendant believed himself to be intoxicated. Thus, this instruction was found to "unconstitutionally compel an accused to furnish [testimonial] evidence against himself or herself." Id. Measured by the Zevita
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