Supreme Judicial Court of Massachusetts, Middlesex
Heard: May 2, 2017
received and sworn to in the Marlborough Division of the
District Court Department on February 13, 2015.
case was tried before Michael L. Fabbri, J. The Supreme
Judicial Court granted an application for direct appellate
Rosseel for the defendant.
D. Ralph, Assistant District Attorney, for the Commonwealth.
Jeffrey J. Pokorak, Natalia Smychkovich, & Houston
Armstrong, for Suffolk Defenders Program of Suffolk
University Law School & others, amici curiae, submitted a
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
Cypher, JJ. 
asked to decide whether, in a jury trial of an operating a
motor vehicle while under the influence (OUI) case, a trial
judge may properly give a jury instruction that specifically
mentions the absence of breathalyzer or other alcohol-test
evidence. We conclude that the judge should not give such an
instruction unless the defendant requests it.
case, the jury were instructed about the absence of
alcohol-test evidence in the judge's final instructions
over the defendant's objection. We conclude that giving
the objected-to charge constituted error and that, in the
circumstances of this case, the error was prejudicial.
Accordingly, we vacate the defendant's conviction and
remand for a new trial.
defendant was charged by complaint with one count of OUI, G.
L. c. 90, § 24 (1) (a.) (1), and twice faced trial on
this complaint before a jury in the Marlborough Division of
the District Court Department. The first, in January, 2016,
ended in a mistrial. The second, in March, 2016, resulted in
a conviction. We summarize the facts as the jury could have
found them at the second trial,  reserving additional details
for later discussion.
February 13, 2015, at around 2 A.M., a Marlborough police
officer patrolling the Main Street area noticed a Ford
Explorer being driven with a broken taillight. The officer
followed the vehicle for approximately five to ten minutes.
During that time, the officer witnessed the vehicle cross the
double yellow line in a "jerking motion" to avoid
hitting a snow bank, and later saw the vehicle cross the
double yellow line again while executing a turn.
officer then stopped the vehicle at the intersection of Union
Street and Stevens Street. Upon approaching the vehicle, the
officer observed the defendant in the driver's seat with
"bloodshot glassy eyes, slurred speech and a distinct
odor of alcohol coming from his breath when he spoke."
The defendant initially told the officer he was coming from a
sandwich shop on Main Street. When the officer replied that
the shop closed much earlier in the evening, the defendant
admitted that he had been at a nightclub where he had
consumed "a few" drinks. The defendant gave
"delayed" responses to several of the officer's
officer then asked the defendant to step out of the vehicle
and walk back to the officer's patrol vehicle. During
this walk, the defendant used his own vehicle "for
balance." Another officer at the scene testified that
the defendant was "swaying" and "unsteady on
his feet." The defendant was placed under arrest and
transported to the Marlborough police station for booking.
station, the defendant "immediately" fell asleep in
a holding cell. During the booking procedure, the officer
again noticed the smell of alcohol on the defendant's
breath and had to repeat questions multiple times before the
defendant responded. At one point, the defendant was
permitted to use his cellular telephone, but instead he sat
"just staring" at his telephone and said that it
would not turn on. The officer allowed the defendant to use
the station's telephone, and explained to the defendant
how to dial an outside number. The defendant appeared unable
to understand this, so the officer dialed the number for him.
was no mention in the trial evidence of the lack of a
breathalyzer test or other alcohol-test evidence.
Nevertheless, the judge instructed the jury, over the
defendant's objection, not to consider the absence of
breathalyzer tests, field sobriety tests, or blood
tests. The judge explained that he believed this
instruction was warranted, in part, because the jury in the
first trial had asked a question about the absence of
breathalyzer evidence before failing to reach a verdict.
second trial, the jury found the defendant guilty. The
defendant filed a timely notice of appeal, and we allowed his
application for direct appellate review.
the defendant claims that the trial judge erred by
instructing the jury, over objection, that they should
disregard the lack of evidence of a breathalyzer test, blood
test, or field sobriety test. Generally, trial judges have
"considerable discretion in framing jury
instructions." Commonwealth v. Kelly, 470 Mass.
682, 688 (2015). However, when, as here, a defendant raises a
timely objection to an instruction, we review for prejudicial
error, conducting a two- part test that asks (1) whether ...