Choosing Not to Testify in a Massachusetts OUI Trial

In Commonwealth v. Botelho, the defendant appealed after being convicted of a second offense OUI. The only issue before the jury at trial was whether he was drunk at the time of the collision or whether his demeanor arose out of his hearing impairment plus the effect of the crash.

The case arose one night in 2012, when an officer responded to a dispatch about a one-vehicle accident. The defendant was discovered behind the steering wheel of a truck that had crashed into a utility pole. There was significant damage at the front of the car, and the side air bag had deployed. When the defendant got out of the truck, he said his stabilizer broke. He said he hadn’t been drinking.

However, the arresting officer later testified that the defendant’s speech was slurred and his eyes were bloodshot, and that he smelled of alcohol. When he administered two field sobriety tests, the defendant tried to perform the tests before he’d finished giving instructions. The officer failed the defendant for both tests and then arrested him and charged him with OUI and negligent operation of a motor vehicle.

At trial, the arresting officer and two experts testified. The officer testified he didn’t know the defendant was hearing impaired and was not familiar with the defendant’s usual speech patterns. The defense’s experts had treated the defendant before the accident for his hearing impairment. They testified he had severe to profound loss of hearing, which came with a speech impairment that caused his speech to sound slurred. One of them testified that his hearing loss may have been exacerbated by the crash and that balance issues, tested through a field sobriety test, often accompany loss of hearing. In this case, the air bag had deployed in the defendant’s face, which could account for the smell on the defendant and his red eyes.

Nonetheless, the jury found the defendant guilty of operating a vehicle under the influence and negligent operation of a motor vehicle. On appeal, the defendant argued that the judge should have instructed the jury it couldn’t infer guilt from the defendant’s decision not to testify. The Commonwealth responded that it was sufficient for the judge to instruct on the burden of proof and the presumption of innocence.

The appellate court explained that when a defendant requests an instruction about his choice not to testify, a trial judge must give an instruction that minimizes the possibility that the jury will infer guilt from the defendant’s choice. Under Fifth Amendment case law, a defendant is not supposed to pay any penalty for choosing not to testify. When an adverse inference arises out of a defendant’s silence, this may be an unfair penalty.

In this case, the defendant requested an instruction related to the choice not to testify. While the judge agreed he would give an instruction about the decision not to testify, the judge didn’t actually provide this instruction. However, the defendant didn’t object to the omission at the time.

The appellate court found that the instruction that was given was deficient in two ways. It didn’t explicitly tell the jury that there existed an absolute Fifth Amendment right not to testify and that no adverse inference should be drawn from the defendant’s choice.

The appellate court had to determine whether failing to give the instruction created a miscarriage of justice. To decide this, it looked at: (1) the strength of the Commonwealth’s case, (2) whether the error was so significant that the jury’s result might have been different if not for the error, and (3) whether the failure to object was a reasonable tactical decision. The court determined that the evidence against the defendant wasn’t overwhelming, and the failure to give the instruction was highly significant.

Furthermore, the risk of prejudice was worsened by the closing argument given by the prosecution, which noted that the only testimony on drunkenness came from the officer. The court determined that, but for the failure to give the instruction and the prosecution’s closing remarks, the verdict might have been different. Accordingly, the court reversed the judgment.

If you are charged in Massachusetts with an OUI, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.

More Blog Posts:

Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015
Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014

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