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Commonwealth v. Carnell12/7/2001
Middlesex.
October 6, 1999.
Motor Vehicle, Operating under the influence. Evidence, Blood alcohol test, Breathalyzer test, Redirect examination. Constitutional Law, Self-incrimination, Breathalyzer test.
Complaint received and sworn to in the Somerville Division of the District Court Department on February 2, 1998.
The case was tried before Robert J. McKenna, Jr., J.
The case was submitted on briefs.
A jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor. On appeal, he argues that the failure to cure testimony incorrectly asserting that he refused to take a blood test following his arrest constituted reversible error. We agree and reverse the conviction.
Facts.
The jury could have found the following facts. In the early morning hours of January 31, 1998, the defendant, accompanied by two passengers, drove through a flashing red light, nearly striking a cruiser driven by State police Trooper James Hanlon. Hanlon signaled the defendant to pull over and asked him to lower his window. The defendant fumbled with the door, but was able to produce a license and registration without difficulty. Asked whether he had been drinking, he answered, " wo beers." As he got out of his car at the trooper's request, he fell against its side. He agreed to submit to field sobriety tests and twice recited the alphabet correctly, but slowly. After being asked to perform a further test, he turned around, placed his hands behind his back, and told Trooper Hanlon to arrest him if he wanted to. Both Hanlon and a trooper accompanying him noted an odor of alcohol emanating from the defendant. Hanlon formed the opinion that the defendant was under the influence of alcohol and arrested him. The other trooper did not form an opinion regarding the defendant's sobriety. A third trooper, who was at the State police barracks where the defendant was booked, testified that the defendant's eyes were glassy and bloodshot and that he smelled of alcohol, but the trooper also did not form an opinion regarding his sobriety. The defendant's two passengers testified that he was sober.
The Inaccurate Refusal Testimony.
On cross-examination, defense counsel asked Trooper Hanlon if the defendant had, at any time, requested a blood test. Hanlon responded that he did not recall if the defendant had made any such request, either at the time of his arrest or later at the barracks while he was being booked.
On redirect examination, the prosecutor showed Trooper Hanlon a document entitled "Massachusetts State Police Statutory Rights and Consent Form" in order to refresh his memory. Hanlon indicated that it was a standard form presented to all persons charged with driving under the influence . The defendant's attorney immediately asked for a sidebar conference, the recorded contents of which are inaudible. The redirect examination continued following the conference. Hanlon testified that the consent form contained language advising the defendant of his right to see a doctor; that he had read the form to the defendant; and that its final line was, in "sum and substance," a query "whether or not the defendant would like a blood test." The defendant checked off the "No" box in response to that question, according to the trooper. The form was neither read nor shown to the jury.
At the conclusion of Hanlon's testimony, the defendant again requested a sidebar conference whose recorded contents are also inaudible. The judge called a recess, telling the jury that a problem had arisen concerning the consent form. With the jury absent, the judge held a voir dire
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