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Massachusetts OUI Conviction Reversed Due to Improper Instruction on Refusal to Take Breathalyzer Test

Today, in the case of Commonwealth v. Gibson, 11-P-1107, the Massachusetts Appeals Court reversed an OUI conviction. The Court in Gibson reported the following facts:

In February of 2010, the defendant went to a couple of Super Bowl parties to watch the New Orleans play the Colts. In total Gibson drank four beers. Around 10:00 p.m. he started to drive home. He approached a red light. He waited for several seconds, became impatient, looked both ways and drove through the red light. He was pulled over. The investigating officer testified that he exhibited symptoms of alcohol impairment. Field Sobriety Tests were administered. Gibson failed each one of these tests. Consequently he was arrested. He never took the Breathalyzer Test. He was charged with OUI. During the deliberation process the jurors had a question about the absence of Breathalyzer Test evidence. Among other things, the judge told the jury that “a person does not have to take [the breathalyzer test]“. Gibson was convicted of OUI and appealed. In reversing the jury’s verdict, the Massachusetts Appeals Court ruled that those words in response to the jury’s question constitute improper on a defendant’s right against self-incrimination. The error being one of constitutional magnitude required reversal of the OUI conviction.

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Commonwealth v. Gibson, 11-P-1107
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In Massachusetts the law is well settled that a person’s refusal to take a Breathalyzer Test and/or Field Sobriety Tests cannot be used against him at trial. Such evidence is inadmissible in that it violates a person’s right against self-incrimination. However, Massachusetts Courts have reasoned that since the general public is well aware of the existence of Breathalyzer Tests in OUI Cases there should be a limiting instruction addressing the issue, provided the defendant requests the instruction. That instruction prohibits reference to a defendant’s legal right to refuse the Breathalyzer Test. Here, the instruction given by the judge violated that prohibition.

Now usually a case will not be reversed where the defense attorney did not object to the error. The Massachusetts Appellate Courts often deem the attorney’s silence as strategic. Deference is given to a lawyers’ trial tactics unless his performance is deemed ineffective. The Court in Gibson did not find the lawyer’s actions to meet that standard. Rather, the Court found that the failure to object coupled with the improper instruction created a substantial risk of a miscarriage of justice warranting a reversal of the conviction. In more simplistic terms, the Court believed there is “a serious doubt whether the result of the trial might have been different had the error not been made”. Gibson’s Massachusetts Criminal Appeals Lawyer recognized this and by doing so was able to get his conviction reversed and to secure him a new trial.


The Law Offices of Stephen Neyman, PC defends OUI, Drunk Driving Cases throughout the state. A conviction for this crime can have devastating consequences making it extremely for you to hire an experienced lawyer if you are facing prosecution for this offense. Call us now at 617-263-6800 or send us an email to discuss your case.