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Massachusetts High Court Vacates OUI Conviction for Improper Jury Instruction in Which Judge Told Jury to Disregard the Absence of Any Sobriety Tests

by Christopher Zoukis

The Supreme Judicial Court of Massachusetts ruled that a defendant accused of operating a motor vehicle while under the influence (“OUI”) has the right to prevent a jury instruction that could cause the jury to speculate about facts not in evidence.

Michael Wolfe was arrested and charged with OUI after a Marlborough police officer observed his vehicle crossing the double yellow line in a “jerking motion.” The arresting officer reported smelling alcohol on his breath and noted that Wolfe was incapable of operating his cellphone when he was permitted to make a call. Marlborough police did not obtain a breathalyzer or any other alcohol-test evidence.

Over Wolfe’s objection, the trial judge instructed the jury not to consider the absence of breathalyzer tests, field sobriety tests, or blood tests. Specifically, the trial judge said: “Now, you may have noticed that there was no evidence of any breath test, blood test, or field sobriety test introduced in this case. You are not to mention or consider in any way whatsoever during your deliberating either for or against either side that there was no such evidence introduced in this case. Do not consider it in any way at all. Do not mention it at all during your deliberations. Put it completely out of your minds.”

Wolfe was convicted and appealed, arguing that the instruction was legally erroneous and prejudicial. Essentially, Wolfe argued that while the theory behind the instruction was fine, its realistic impact on the jury was not. Pointing out to the jury that they should not consider missing evidence in the way the trial court did could unintentionally cause the jury to specifically focus on it instead.

In its October 13, 2017 opinion, the high court determined that the instruction could have violated Wolfe’s constitutional protection against self-incrimination in the same way that an instruction about a defendant’s choice not to testify can. The Court observed that a jury instruction to disregard the absence of a breathalyzer and similar types of tests has the potential of cutting either way—it may help or hurt the defendant during jury deliberations.

“Such an instruction may very well be effective [in staving off jury speculation],” wrote the Court. “However, there is another possibility: that such a targeted instruction introduces the idea of missing breathalyzer evidence into the jury room, and, as a result, prompts the jury to wonder about the missing breathalyzer evidence and do the opposite of what they have been instructed to do.”

In light of that reality, the Court concluded that the defendant should have the right to decide whether the trial judge gives a jury instruction regarding the absence of various tests. The trial court’s instruction over Wolfe’s objection was error. The Court instructed that because he objected at trial and argued for the rule announced in this decision, “he should have the benefit of this decision, which otherwise shall apply only prospectively.” Consequently, the Supreme Court vacated Wolfe’s conviction and remanded for a new trial. See: Commonwealth v. Wolfe, 478 Mass. 142 (2017). 

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