989 N.E.2d 915
Mass. App. Ct.2013Background
- At ~1:30 a.m., Officer Tobyne observed Brown driving on wrong side of the road, pursued him, and stopped him in a driveway; she smelled alcohol and noted slurred speech and glassy eyes.
- Brown was asked to perform standard roadside field sobriety tests (nine-step heel-to-toe walk and the one-legged stand). He performed the walk poorly and failed to complete the nine steps.
- During the one-legged stand, Brown put his foot down immediately on the first attempt, lost balance on the second, and said, “I can’t do this.” He was then arrested and charged with OUI (second or subsequent) and a marked lanes violation.
- The defendant moved in limine to exclude the officer’s testimony about Brown’s statement while attempting the test, arguing the statement was compelled testimonial evidence under art. 12 of the Massachusetts Declaration of Rights.
- The judge denied the motion in limine (objection noted but not renewed at trial); the appeal raises whether volunteered difficulty statements made while attempting field sobriety tests are compelled testimonial evidence barred by art. 12.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statements made while attempting field sobriety tests (e.g., “I can’t do this”) are compelled testimonial evidence under art. 12 | Commonwealth: Statements are admissible because they follow voluntary assent to take tests and are not compelled. | Brown: Statements are testimonial and result from the compelled choice to take or refuse tests, so inadmissible under art. 12. | Court held such statements are testimonial but not the product of governmental compulsion once the suspect agreed to and attempted the tests; admissible. |
| Whether refusal evidence differs from volunteered difficulty statements for art. 12 purposes | Commonwealth: Refusal evidence is distinct and inadmissible, but voluntary attempts and related comments are admissible. | Brown: Any inculpatory statement made during roadside testing should be barred as compelled. | Court reaffirmed refusals are protected (Catch‑22), but comments during attempts are not compelled and may be used. |
| Whether later withdrawal after initial consent (i.e., consenting then refusing) makes later refusal admissible | Commonwealth: Not applicable to this case; prior rulings treat later refusal as protected. | Brown: argued protection should extend to any inculpatory roadside statements. | Court noted that later refusal after consent is still protected; distinction remains between refusal and attempted-performance statements. |
| Whether officer testimony about ordinary field sobriety tests requires expert foundation | Commonwealth: Lay-observer testimony of coordination is admissible; HGN may require expert. | Brown: Implicit challenge to reliability/expertise of officer testimony. | Court held ordinary coordination tests are admissible as lay observations; HGN is different and may need expert testimony. |
Key Cases Cited
- Commonwealth v. Blais, 428 Mass. 294 (rule that refusal to perform tests is testimonial and barred under art. 12)
- Commonwealth v. Brennan, 386 Mass. 772 (field sobriety tests reveal physical coordination, not thoughts; nontestimonial)
- Opinion of the Justices, 412 Mass. 1201 (describing Catch‑22 compulsion when refusal is used against suspect)
- Commonwealth v. McGrail, 419 Mass. 774 (refusal to perform tests is protected as testimonial evidence)
- Commonwealth v. Sands, 424 Mass. 184 (voluntary admissions about intoxication during testing not barred by art. 12)
- Vanhouton v. Commonwealth, 424 Mass. 327 (distinguishing testimonial responses absent compulsion in roadside, noncustodial stops)
- Commonwealth v. Curley, 78 Mass. App. Ct. 163 (observations of attempts to take tests are admissible)
- Commonwealth v. Grenier, 45 Mass. App. Ct. 58 (later refusal after initiating test remains protected)
- Commonwealth v. Conkey, 430 Mass. 139 (compulsion analysis and distinction between refusal and other conduct)