SJC rules on OUI jury instruction

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A judge in a prosecution for operating a motor vehicle while under the influence should not instruct the jury to disregard the lack of evidence of a breath test, blood test or field sobriety test unless the defendant requests such an instruction, the Supreme Judicial Court has decided in a split decision.

“[W]e conclude that typically a defendant should be able to elect whether the jury are instructed about the absence of alcohol-test evidence,” Justice Kimberly S. Budd wrote for the majority.

Justice David A. Lowy, joined by Justices Frank M. Gaziano and Elspeth B. Cypher, dissented.

“Today the court recognizes that a defendant should be able to remove speculation regarding the absence of breathalyzer evidence from a trial on a charge of operating a motor vehicle while under the influence of alcohol (OUI) by requesting an instruction pursuant to Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001),” Lowy stated.

He agreed with that. “However, because I feel that the Commonwealth should also be able to remove such speculation by requesting the same instruction, I respectfully dissent,” Lowy said.

The 21-page decision is Commonwealth v. Wolfe, Lawyers Weekly No. 10-163-17.

Click here to read the full text of the opinion.