Commonwealth v. Lopes, 944 N.E.2d 999

Lopes was arrested for OUI and negligent operation after driving in reverse toward oncoming traffic and failing standard field sobriety tests.
At the police station, a breathalyzer consent form notified Lopes of his right under § 5A to an independent medical examination; Lopes consented to a breath test.
The breathalyzer showed a blood alcohol content of .25%, and the results were admitted at trial along with the consent form in full.
Lopes’ attorney objected to unrevealed redaction of the § 5A language, arguing it could imply guilt and violate art. 12.
The trial court admitted the form without redaction, determined prerequisites for admissibility were met, and the jury found Lopes guilty.
On appeal, the court held that the § 5A notification is not self-incrimination, but acknowledged redaction would have been better practice; the error was nonprejudicial, and convictions affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does admitting the § 5A notification violate art. 12?	Lopes argues the notice is compelled and implies guilt, violating art. 12.	Lopes contends the language is advisory, not compelled, and not testimonial.	No violation; notification is advisory and not a compelled or testimonial admission.
Was the form’s § 5A language relevant to any issue for the jury?	The language could cue guilt and affect credibility.	The language has no bearing on the offense elements or blood test credibility.	Not relevant to elements or weight; redaction would have been better but was nonprejudicial.
Should the court have redacted the § 5A language before trial?	Redaction is required to avoid implying guilt.	The language is admissible as a predicate regarding admissibility.	Redaction would have been appropriate; failure was nonprejudicial.
Issues of admissibility vs. jury fact-finding—who decides the breathalyzer predicate?	Matters of admissibility should be determined by the judge.	Some probative issues may be weighed by the jury.	Admissibility is a judicial question; jury should not determine predicate facts.
Did the lack of redaction affect the weight or credibility of the breathalyzer evidence?	Nonredacted language could undermine reliability.	Evidence of BAC is independent; language does not affect reliability.	Nonprejudicial error; convictions affirmed.

Commonwealth v. Barbeau, 411 Mass. 782 (Mass. 1992) (breathalyzer admissibility and foundational concerns)
Commonwealth v. Conkey, 430 Mass. 139 (Mass. 1999) (refusal to submit to fingerprint test inadmissible; art. 12 considerations)
Commonwealth v. Hinckley, 422 Mass. 261 (Mass. 1996) (refusal to turn over evidence improper; art. 12 considerations)
Commonwealth v. Lydon, 413 Mass. 309 (Mass. 1992) (refusal to allow hand swabbing inadmissible; art. 12 considerations)
Commonwealth v. Rosewarne, 410 Mass. 53 (Mass. 1991) (§ 5A rights background; not required to transport for examination)
Opinion of the Justices, 412 Mass. 1201 (Mass. 1992) (advisory opinion on admissibility of refusal to consent to breathalyzer)
Commonwealth v. Brennan, 386 Mass. 772 (Mass. 1982) (art. 12 protection against compelled testimonial evidence)
Commonwealth v. McGrail, 419 Mass. 774 (Mass. 1995) (art. 12 scope: protects against compelled testimonial communications)