Opinion
No. 12–P–1228.
2013-12-20
COMMONWEALTH v. Jose FLORES.
By the Court (RUBIN, MILKEY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury of operating under the influence of alcohol (OUI), and of negligent operation of a motor vehicle.
After a colloquy in which he agreed to waive his right to a jury trial on the second-offense element of the OUI alcohol charge against him, he was found guilty on that element by the trial judge. In this direct appeal, we address his two arguments in turn.
The defendant was also found guilty of failing to stop for a police vehicle and found responsible on a charge of obstructing an emergency vehicle; both of these charges were place on file.
First, he argues that statements he made in response to a request to take a field sobriety test should not have been admitted in evidence because they were obtained in violation of his right under art. 12 of the Massachusetts Declaration of Rights to avoid self-incrimination. According to the testimony of the officer who performed the field sobriety tests, instead of simply agreeing or refusing to take them, in response to the officer's request the defendant began telling the officer about his night of drinking, describing having gone to a bar in Framingham, staying until last call, and then going to a friend's house to continue drinking until after hours. He then said, according to the officer, “I'm now in a shitty situation.” The defendant argues that this statement about the predicament of having to decide whether to take field sobriety tests was compelled by the request to take the tests and that, like a flat refusal to take such test, which is inadmissible, see Commonwealth v. McGrail, 419 Mass. 774, 777–780 (1995), these statements likewise should not have been admitted.
We agree with the trial judge that these statements were not a refusal, and that their admission therefore is not directly barred by McGrail. Even were we to assume that their admission was nonetheless impermissible, something we need not and do not decide, any error was harmless beyond a reasonable doubt: The other evidence against the defendant was overwhelming. The uncontested evidence showed, among other things, that he sped through an active construction zone at eighty miles per hour at 3:20 A.M. He then led the police on a high speed chase. He failed to stop in response to the lights and sirens of an officer's cruiser immediately behind him. Rather, he stopped only when two police cruisers blocked his path so that he was forced to stop. He did not move when ordered out of his car. He had to have an officer take his seat belt off of him and lift him bodily out of his car. He had an odor of alcohol about him, stated that he had been drinking, and had a dazed look.
The defendant's second argument is that the Commonwealth did not prove beyond a reasonable doubt that the defendant's driving was impaired. The evidence described above clearly is sufficient to support a jury finding that the defendant's capacity to drive safely was diminished by alcohol beyond a reasonable doubt. See Commonwealth v. Connolly, 394 Mass. 169, 172–173 (1985).
Judgments affirmed.