As far as Massachusetts Drunk Driving trials go, prosecutors are not able to introduce to a jury evidence that the driver refused to perform any field sobriety tests. But what about the scenario where the driver initially agreed to perform field sobriety tests and then decided to stop?
The Massachusetts Supreme Judicial Court recently addressed these circumstances in the case of Commonwealth v. Brown.
In that case, the defendant went to trial on the charges of driving under the influence of alcohol, second offense. At trial, the prosecutor was permitted to introduce evidence that, although the driver initially agreed to perform field sobriety tests, during one of the tests he stated "I can't do this" and refused to perform any additional tests.
These circumstances are a classic illustration of 'governmental compulsion' and the reasons why, in most cases, evidence of a refusal may not be introduced as evidence against the defendant. In other words, there is compulsion when the defendant is forced to choose between two alternatives, both of which are capable of producing evidence against him and therefore putting him in a 'catch-22' situation: either take the test and potentially produce incriminating evidence against yourself; or refuse the test and have adverse testimonial evidence used against you at trial.
On this appeal, the defendant argued that because he expressly stated "I can't do this", he affirmatively exercised his right to refuse any further tests and that it was error for the trial judge to permit the prosecution to introduce this refusal against him at trial.
The Massachusetts Supreme Judicial Court rejected this defendant's appeal because the question in this case turned on the issue of whether there was government compulsion in the first place. Once the defendant agreed to take the field sobriety tests, any expressions of difficulty or inability to perform are expressions not the products of 'compulsion' and are therefore admissible against him.