Never Take an Arrest for Granted

In Commonwealth v. Daigle (Massachusetts Appeals Court No. 19-P-1215, January 25, 2021), an officer stopped the defendant's car after the defendant failed to make a complete stop at a stop sign. Upon encountering the defendant the officer claimed to have detected an odor of alcohol and claimed to have  observed the defendant with  glassy eyes and slurred speech (the common trilogy). The officer asked the defendant to perform so-called field sobriety tests. The defendant advised the officer that she had had two prior knee surgeries (and at trial produced medical records documenting three knee surgeries).

The officer contended that--in attempting to walk a straight line heel to toe--the defendant permitted up to six inches between heel and toe and occasionally strayed from the straight line by one to two inches. The officer then asked the defendant to remove her high-heeled boot(s) and perform a one-leg stand--which the officer concluded the defendant was unable to perform (on the side of the road in bare feet in the cold).

The defendant was placed in handcuffs and--according to the defendant--she began to suffer a panic attack.

At the police station the defendant agreed to submit to a breath test but--perhaps due to the panic attack--was unable to deliver a sufficient breath sample. As the machine failed to read the samples she become more panicked and ultimately was unable to provide a sample sufficient to obtain a breath test result. She repeatedly asked to perform an additional test but the officer refused her requests.

At trial the Commonwealth offered the above evidence--and argued that the inadequate breath sample was an intentional attempt to conceal her inebriation and her agitation at being refused an additional opportunity to "take" the test was further evidence of inebriation. The Commonwealth also noted that the defendant's moon roof was open on a cold evening--evidence the Commonwealth contended was still further proof of inebriation.

For her part the defendant contended that the breath test machine the police used reported an unusually high number of refusals--suggesting that the issue was with the machine and not with the defendant.

In the end the evidence was an equivocal heel-to-toe test followed by difficulty standing on one bare foot in the cold on the side of the road--all by one with a questionable lower leg. No breath test was presented. This was the evidence. The Commonwealth contended that the inadequate breath sample was the defendant's effort to evade detection--yet the Commonwealth may have been aware that the particular machine reported an unreasonably high number of refusals (calling its reliability into question) and the defendant requested an opportunity to provide an additional sample or samples. Then there was the open moon roof . . . The jury convicted the defendant.

The moral of the story is the Commonwealth--even in the absence of compelling evidence of intoxication--will throw everything at a defendant--even if the evidence is not necessarily reliable (breath test refusal) or reasonable (open moon roof).

Never take an arrest for granted.