Commonwealth v. Wolfe, SJC 12257

Defendant Wolfe was charged with one count of operating under the influence (OUI) after a 2015 traffic stop; two jury trials occurred—first ended in mistrial, second resulted in conviction.
Evidence at trial: observed driving errors (crossing double yellow line twice), officer observed bloodshot/glassy eyes, slurred speech, odor of alcohol, unsteady gait, delayed responses; defendant arrested and fell asleep at booking.
No breathalyzer, blood, or field-sobriety test evidence was introduced at trial.
At the second trial the judge, over the defendant’s objection, gave a “Downs-type” instruction telling jurors not to consider or mention the absence of any alcohol-test evidence; the judge said prior jury had asked about missing tests.
The SJC held that giving such an instruction over objection was error and, on the facts of this case, prejudicial; the conviction was vacated and remanded for a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a trial judge may, over a defendant's objection, give a jury instruction specifically mentioning the absence of breathalyzer/other alcohol-test evidence in an OUI case	Commonwealth: a Downs-type instruction prevents juror speculation about missing tests and protects the trial's truth-finding function	Wolfe: such an instruction risks highlighting refusal/self-incrimination implications and should not be given without defendant's consent	Court: Generally a judge should not give the instruction over defendant's objection; defendant may elect to have it, and the trial judge erred here in giving it over objection
Whether the erroneous instruction was prejudicial requiring reversal	Commonwealth: jury general-instruction presumption and Downs reduce risk of prejudice; any instruction may be helpful	Wolfe: evidence of impairment was not overwhelming; judge's specific instruction likely influenced jury	Court: Error was prejudicial on facts here; conviction vacated and remanded for new trial

Commonwealth v. Kelly, 470 Mass. 682 (discussing trial judge discretion in jury instructions)
Opinion of the Justices, 412 Mass. 1201 (holding admission of refusal evidence would violate art. 12)
Commonwealth v. Zevitas, 418 Mass. 677 (instruction suggesting reasons for absence of test violated privilege against self-incrimination)
Commonwealth v. Downs, 53 Mass. App. Ct. 195 (Appeals Court approval of a limiting instruction that tells jurors not to consider absence of breathalyzer evidence)
Commonwealth v. Buiel, 391 Mass. 744 (rule that court should not instruct on defendant's choice not to testify when defendant requests no instruction)
Commonwealth v. Rivera, 441 Mass. 358 (modified Buiel rule; instruction about not testifying reviewed for prejudice when objected to)