The defendant was convicted by a jury of operating
a motor vehicle while under the influence of intoxicating liquor in violation of G. L. c. 90, § 24 (1) (a) (1). Prior to trial, the defendant moved in limine to admit evidence that, shortly after he had declined to take a breathalyzer test, he changed his mind and requested but was not given the test. The judge denied the
1. Background. On May 14, 2010, Marie Clark was driving north on Route 10 in Southampton when she observed a pickup truck being driven erratically. She alerted police, who thereafter followed and then stopрed the truck. The defendant was the driver of the truck and its sole occupant. The two police officers present noticed a strong odor of alcohol coming from inside the vehicle. Officer Dennis R. Scribner of the Easthampton police department observed that the defendant was “very unsteady on his feet,” his eyes were bloodshot and glassy, and his pants were wet from admitted incontinence. Scribner saw a partially consumed and still cold forty-ounce bottle of beer sticking out of a bag beside the driver’s seat. Scribner testified that he administered a field sobriety test, and the defendant performed poorly. Both officers believed that the defendant was under the influence of alcohol; Scribner arrested him at the scene.
On the morning of trial, the defendant moved in limine that he be permitted to testify that, at the police station, he initially declined to take a breathalyzer test, then “shortly afterwards” changed his mind and asked to take the test, but one was not administered. Although the prosecutor “really [had] no objection to that evidence coming in,” he expressed concern as to what evidеnce the Commonwealth would be permitted to introduce in order to “give the Commonwealth’s version of
2. Standard of review. Where a defendant does not preserve a claim of error at trial, we review the alleged error to determine whether there is a substantial risk of a miscarriage of justice. Commonwealth v. Alphas,
Here, the defendant moved in limine, pretrial and without success, to аdmit evidence, but neither proffered that evidence at trial nor objected to its exclusion. The defendant contends, however, that the motion in limine served to preserve the error because it sought to admit rather than exclude evidence and, once denied, therе was “no logical time or place at trial to renew an objection.” This argument is without force, since counsel could readily have sought a sidebar conference, for example, at the close of the Commonwealth’s case or before or
3. Evidence of recantation. In any event, no matter which standard of review applies, there was no error. Generally,
Here, the judge acted within the scope of his discretion in excluding the proffered testimony. The defendant sought to testify that, shortly after declining to take a breathalyzer test, he requested to do so.
Judgment affirmed.
Notes
The defendant claims error in the testimony оf one of the police officers, who stated that the defendant was “chunk” on the night in question. He argues that the officer thereby invaded the fact-finding province of the jury by offering an opinion as to the ultimate question of guilt or innocence. See Commonwealth v. Hesketh,
However, where a defendant moves in limine to suppress evidence on constitutional grounds, pretrial objection to the denial of the motion preserves appellate rights. See Commonwealth v. Acosta,
The defendant testified at trial, stating that he had consumed two or three beers that evening but was not impaired and had no trouble driving.
Our ruling today does not change the principle that the adequacy of an objection is to be considered “in the context of the trial as a whole.” Commonwealth v. Koney,
The defendant maintains as well that the asserted error is of constitutional dimension, as the Sixth and Fourteenth Amendments to the United States Constitution, as well as art. 12 of the Massachusetts Declaration of Rights, guarantee him the right to present his theory of defеnse. However, a defendant is not necessarily deprived of the right to present his theory of defense simply because the judge excludes a piece of evidence supporting such theory. See Commonwealth v. Bizanowicz,
Here, exclusion of the proffered testimony did not prevent the defendant from presenting his theory of defense, i.e., that he did not operate his vehicle while under the influence of alcohol. The defendant testified at trial that he drank only two or three beers that night; that he drank only a sip from the forty-ounce bottle of beer the officers found in his truсk; that he was not speeding, driving erratically, or operating his vehicle while impaired in any way; and that he only urinated on himself because he urgently needed to use the bathroom when the officers pulled him over. He also testified that, contrary to police testimony, he was nеver asked to recite the alphabet as a field sobriety test. The defendant’s brother testified that damage the police observed on the defendant’s truck predated the night in question. In closing argument, defense counsel asked the jury to find the defendant’s testimony credible and аrgued that the Commonwealth had failed to prove the defendant was operating while under the influence of alcohol. Given this, the defendant’s theory of defense was clearly presented, even without the proffered testimony suggesting consciousness of innocence.
Additionally, the defendant suggests that he had a “right” to a breathalyzer test. We note simply that a suspect has no right to a police-administered breathalyzer test. See Commonwealth v. Alano,
The defendant’s initial refusal to take the breathalyzer test ordinarily could not be admitted in evidence against him. See G. L. c. 90, § 24 (1) (e) (“Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding . . .”). The statute does not address whether a recantation of that refusal, or a request that the test be administered, is admissible. Because the statute bars only the admission of refusal evidence “against” the defendant, id.., and because the defendant may in any case waive his right against self-incrimination, see, e.g., Commonwealth v. Connors,
The same statute obligates police officers to inform suspects of this penalty. G. L. c. 90, § 24 (1) if) (1). Presuming as we do that the officers followed protocol, cf. Commonwealth v. Lopez,
The defendant urges us to consider the question, briefed by both parties, whether he in fact “refuse[d]” the breathalyzer test under G. L. c. 90, § 24 (1) (/) (1). He argues that, because he requested a breathalyzer test “shortly after[]” he initially declined the same, he should not be deemed to have “refuse[d]” the test under the statute. Characterizing the case as one of statutory interpretation, he argues that we must decide the meaning of the word “refuses” in G. L. c. 90, § 24 (1) if) (1). He notes that authority elsewhere is split on whether a refusal can be recanted under comparable implied consent statutes, and he urges us to adopt a “flexible” approach, such as that taken in Lund v. Hjelle,
First, we need not reach the question to resolve this case. The defendant challenges his criminal conviction, claiming that evidence was improperly excluded. Interpretation of the word “refuses” is, however, not necessary in this context to determine whether there was error. Unlike most of the cases cited by the parties cоncerning the meaning of the term “refuses,” see, e.g., id., this is not a case involving the civil suspension of a driver’s license resulting from an alleged refusal to take a breathalyzer test, where the meaning of the statutory term “refuses” would be directly at issue. See G. L. c. 90,