Posts tagged "1107913"

Commonwealth v. Brown (Lawyers Weekly No. 11-079-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       12‑P‑614                                        Appeals Court   COMMONWEALTH  vs.  RICHARD G. BROWN.     No. 12‑P‑614. Middlesex.     April 18, 2013.  ‑  June 20, 2013. Present:  Green, Carhart, & Agnes, JJ.     Motor Vehicle, Operating under the influence.  Evidence, Field sobriety test, Voluntariness of statement, Testimonial statement.  Constitutional Law, Voluntariness of statement.  Practice, Criminal, Voluntariness of statement.       Complaint received and sworn to in the Malden Division of the District Court Department on May 24, 2010.   The case was heard by J. Elizabeth Cremens, J.     Dana Alan Curhan (MarySita Miles with him) for the defendant. Alexandra G. Watson, Assistant District Attorney, for the Commonwealth.     AGNES, J.  When a person who is suspected by the police of operating a motor vehicle on a public way while under the influence of alcohol refuses to submit to roadside tests commonly referred to as field sobriety tests, evidence of his refusal is not admissible at trial because it is regarded as compelled testimony in violation of art. 12 of the Massachusetts Declaration of Rights.  See Commonwealth v. Blais, 428 Mass. 294, 298-299 (1998).  In this case, we must decide whether compulsion, in a constitutional sense, is involved when such a person agrees to perform field sobriety tests, and then in attempting to perform a test makes statements about the difficulty of completing it or the inability to perform it.  For the reasons which follow, we conclude that statements of a person’s difficulty or inability to perform a field sobriety test like those involved in this case are not the product of compulsion within the meaning of art. 12 and thus are available for use against the individual at trial. The defendant was convicted of operating a motor vehicle while under the influence of alcohol, second or subsequent offense, and found responsible for a marked lanes violation as a result of an incident which occurred on May 23, 2010, in Wakefield.  See G. L. c. 90, § 24(1)(a)(1); G. L. c. 89, § 4B.  The sole issue raised on appeal is the judge’s denial of the defendant’s pretrial motion in limine to exclude certain testimony by the investigating police officer about statements made by the defendant while he was attempting to perform the tests. Factual background.  The motion in limine is not included in the record.  The motion was heard prior to […]

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Posted by Massachusetts Legal Resources - June 20, 2013 at 5:32 pm

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