In the recent case of Commonwealth v.  James M. Curley, the Massachusetts Appeals Court upheld the admission of Curley’s failed efforts to take a breathalyzer test. The Court found that the circumstances in Curley’s case were different from those in the leading case on the inadmissibility of breathalyzer refusal evidence, where the Court ruled that individuals accused of DUI in Massachusetts who are offered a breathalyzer test are placed in a ‘Catch-22′ situation: take the test and produce incriminating evidence or refuse the and have the breathalyzer refusal used against them at trial. To avoid this unfair “catch-22,” the Court held that breathalyzer refusal evidence is admissible at the Massachusetts drunk driving trials. The rational for excluding refusal evidence is that it is tantamount to the statement ‘I have had so much to drink that I know or at least suspect that I am unable to pass the test.’ However, the Massachusetts Registry of Motor Vehicles and Board of Appeal use the refusal evidence used to suspend a DUI defendant’s license for 180 days up to life.

In the Curley case, which was decided on October 25, 2010, A Hudson, Massachusetts Police Officer stopped Curley for making an illegal turn. When he was stopped, Curley told the police officer that he was coming from a bar. The officer observed that Curley’s eyes were red and glassy. He detected an odor of an alcoholic beverage and Curley’s speech was slurred. The officer had Curley perform DUI field sobriety tests and he determined that Curley’s performance on the field sobriety tests was “not too good” and that he had failed the field sobriety tests. The officer arrested Curley for drunk driving.

When the police asked Curley to take a breathalyzer test at the police station, he responded with questions about the effects of alcohol, whether they depended on a person’s body weight and when he had eaten, and the “timing of first and last drinks.” The police did not answer the questions and eventually, Curley said that he wanted to take the test, but he wanted a drink of water first. The police did not allow him to drink water, because Massachusetts breathalyzer procedures require that the person taking the test not have anything in his or her mouth for at least 15 minutes prior to the breathalyzer test. Shea explained that the procedure did not permit him to take anything by mouth before taking the test. The defendant then agreed to take it, and he signed the consent form.

The officer running the breathalyzer instructed Curley “to blow into the mouthpiece with a deep breath with his lips sealed around . . . the edge of . . . the mouthpiece so that the sample could go into the machine, and he [the defendant] kept blowing with his mouth open so the air would not go into the machine.” He told the jury that, if the machine does not get enough of a breath sample, it will not give a reading. Two police officers testified that Curley went through the process four times, each time blowing in the same way, and never producing a reading.

Curley’s Massachusetts DUI Lawyer objected to the introduction of the testimony that Curley did not provide a sufficient breath sample to produce an alcohol reading. The Court allowed the testimony on the grounds that Curley’s case was not like the “catch-22” case because he did not refuse to take the breathalyzer test. Instead, he signed a breathalyzer consent form indicating that he consented to take the test. From his failure to provide a sufficient breath sample, the Jury could have permissibly inferred that he was trying to avoid giving a sample while appearing to try to take the test. The evidence was admissible.