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Joseph Coupal - Thursday, September 17, 2009
As most people know, in the absence of overwhelming impairment, the police typically do not arrest a person for DUI until they have administered field sobriety tests. Although the Massachusetts Supreme Judicial Court has held that, like a breath test refusal, a defendant’s refusal to perform field sobriety test is not admissible against him at trial. Many, if not most, people do submit to the tests when requested by police, perhaps because they are not aware that they may refuse. Recently, a Massachusetts client was pulled over late at night because of a defective headlamp. He was asked to step out of his vehicle when the officer smelled an odor of alcohol and observed his eyes to be red and glassy. The client complied and walked to the rear of the vehicle. When the officer asked him to perform the voluntary tests, the client politely refused, and he was arrested. At the police station, the client agreed to take a breath test, which yielded a .08% blood alcohol level. This week, the court held a hearing on our motion to suppress all evidence obtained after the arrest. Our contention was that the officer did not have probable cause to arrest, and so all evidence obtained as a result of the arrest was obtained unlawfully. After the hearing, the judge ruled that there was not probable cause to arrest the defendant while he was still in his car, since an odor of alcohol and red, glassy eyes were not sufficient by themselves to support a DUI arrest. Where no new evidence of impairment was obtained by the police when the defendant exited the vehicle, walked to the spot when the officer directed him, and refused the tests, the court agreed that there was still no probable cause to arrest. Since the defendant’s refusal to submit to tests could not penalize him in the eyes of the court, all evidence obtained after the arrest was excluded. In this case, the client’s respectful refusal to supply evidence against himself benefited him significantly in the end.

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