COMMONWEALTH vs. RICHARD G. BROWN.

AGNES, J. When a person who is suspected by the police of operating a motor vehicle on a public way while under the influence of alcohol refuses to submit to roadside tests commonly referred to as field sobriety tests, evidence of his refusal is not admissible at trial because it is regarded as compelled testimony in violation of art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Blais, 428 Mass. 294 , 298-299 (1998). In this case, we must decide whether compulsion,

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in a constitutional sense, is involved when such a person agrees to perform field sobriety tests, and then in attempting to perform a test makes statements about the difficulty of completing it or the inability to perform it. For the reasons which follow, we conclude that statements of a person's difficulty or inability to perform a field sobriety test like those involved in this case are not the product of compulsion within the meaning of art. 12 and thus are available for use against the individual at trial.

The defendant was convicted of operating a motor vehicle while under the influence of alcohol, second or subsequent offense, and found responsible for a marked lanes violation as a result of an incident which occurred on May 23, 2010, in Wakefield. See G. L. c. 90, § 24(1)(a)(1); G. L. c. 89, § 4B. The sole issue raised on appeal is the judge's denial of the defendant's pretrial motion in limine to exclude certain testimony by the investigating police officer about statements made by the defendant while he was attempting to perform the tests.

Factual background. The motion in limine is not included in the record. The motion was heard prior to the trial on the basis of argument by counsel. However, there is no dispute as to the essential facts, which we draw from the transcripts of the pretrial and trial proceedings viewed in the light most favorable to the Commonwealth. At approximately 1:30 A.M. on May 23, 2010, Wakefield police Officer Kelly Tobyne observed the defendant's black sport utility vehicle traveling on the wrong side of Nahant Street as it came around a turn. She activated her cruiser's blue lights. The defendant did not stop. She then activated her siren and pursued the defendant's vehicle for about three-tenths mile onto Broadway, where she observed it pull into a driveway on Lake Street. Officer Tobyne observed the defendant, Richard G. Brown, get out of his vehicle. He remarked, "Can't you guys just let me go home?" The defendant stated that he had only consumed a couple of beers. Officer Tobyne noted that the defendant's speech was slurred, his eyes were glassy, and there was an odor of an alcoholic beverage. Officer Tobyne ordered him to get back into his vehicle. By this time, Officer Erickson arrived at the scene.

The defendant was asked to step out of his vehicle and to

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perform some field sobriety tests. [Note 1] Officer Tobyne first explained and demonstrated how to perform the nine-step, heel to toe walk and turn test. The defendant did not complete the nine steps, did not touch heel to toe, extended his arms for balance as he walked, and appeared unsteady. The defendant asked how he had done. Officer Tobyne did not reply, but instead explained and demonstrated the next test, the one-legged stand, which requires one leg to be raised for a specified number of seconds. On the first attempt the defendant raised his leg, but immediately put it down. On his second attempt, the defendant lost his balance and stated, "I can't do this." The defendant was then arrested and transported to the Wakefield police station where he was booked.

Discussion. 1. Standard of review. After denying the defendant's pretrial motion in limine, the judge added, "I'll note your objection." When the evidence was offered at trial, the defendant did not renew his objection. The Commonwealth maintains that we should treat the issue as a claim of unpreserved error. In such a case, the standard of review is whether there was a substantial risk of a miscarriage of justice. The general rule is that the denial of a motion in limine does not, without more, preserve the issue for purposes of appellate review. See Commonwealth v. Whelton, 428 Mass. 24 , 25 (1998); Mass. G. Evid. § 103(a)(3) (2013). There is no need to object at trial, however, when the

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pretrial motion is based on constitutional grounds. See Commonwealth v. Whelton, supra at 26. Here, the defendant's claim was based entirely on art. 12. In view of the result we reach, it is unnecessary to decide the point. We will assume that the issue was preserved.

2. The constitutional framework. Article 12 prohibits the use in a criminal proceeding of evidence that is (1) the product of governmental compulsion [Note 2] and (2) testimonial. See Commonwealth v. Lopes, 459 Mass. 165 , 169 (2011). [Note 3] See also Commonwealth v. Brennan, 386 Mass. 772 , 783 (1982) (privilege against self-incrimination expressed in art. 12 does not extend to noncommunicative evidence).

a. Governmental compulsion. In cases involving the refusal to perform a test, the element of governmental compulsion is required whether the police inform the defendant that he may take the test, request that he take the test, or command him to take the test. As the Supreme Judicial Court observed in Opinion of the Justices, 412 Mass. 1201 , 1211 (1992), in reviewing proposed legislation, "[t]here is compulsion, therefore, on the accused to choose between two alternatives, both of which are capable of producing evidence against him. The proposed statute, therefore, uses the threat of adverse testimonial evidence as a coercive tool to compel submission to a breathalyzer test. The accused is thus placed in a 'Catch-22' situation: take the test and perhaps produce potentially incriminating real evidence; refuse and have adverse testimonial evidence used against him at trial." [Note 4] The basis for the Massachusetts rule that a refusal to perform a test offered by the police is compelled testimony is

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"[t]he choice either to produce incriminating evidence or be punished with an inference of guilt." Commonwealth v. Bly, 448 Mass. 473 , 497 (2007). See State v. Fish, 321 Or. 48, 58 (1995) ("Thus, when an individual is given a 'choice' between various courses of conduct, the determination of whether the 'choice' constitutes compulsion depends on the nature of the options. Where every 'choice' is a course of conduct that the state could not compel an individual to take, mandating by law that an individual make a 'choice' among them constitutes compulsion"). [Note 5]

b. Testimonial evidence. Tests of physical coordination, such as walking a straight line, raising one leg for a specified number of seconds, and touching one's nose with one's index finger, are not testimonial because they do not "reveal[] the subject's knowledge or thoughts concerning some fact." Commonwealth v. Brennan, 386 Mass. 772 , 778 (1982). The responses of a person impaired by alcohol to such tests are incriminating "not because

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the tests [reveal the] defendant's thoughts, but because [the defendant's] body's responses [differ] from those of a sober person." People v. Hager, 69 N.Y.2d 141, 142 (1987). In Vanhouton v. Commonwealth, 424 Mass. 327 , 332 n.9, cert. denied, 522 U.S. 834 (1997), the court explained that if, during "a roadside traffic stop for suspected drunk driving where the motorist is not in custody," he performs field sobriety tests such as reciting the alphabet, counting backwards, and reciting the date of a particular birthday, there is no violation of art. 12 because even if the suspect's responses are testimonial, they are not the product of governmental compulsion. See Pennsylvania v. Muniz, 496 U.S. 582, 585-586, 602-604 (1990) (defendant was in custody, but observations of his slurred speech and lack of muscular coordination during field sobriety tests were not testimonial).

Refusal evidence, however, stands on a different footing. As we have already noted, "[o]rdinarily, a prosecutor wants to admit evidence that the defendant refused to take a field sobriety test so that the jury may infer that it is the equivalent of his statement, 'I have had so much to drink that I know or at least suspect that I am unable to pass the test.' Opinion of the Justices, [412 Mass.] at 1209." Commonwealth v. McGrail, 419 Mass. 774 , 778 (1995). "[T]he admissibility of such a refusal would place a defendant in a coercive 'Catch-22' situation: Take the test and 'furnish' incriminating real evidence against oneself, or refuse and produce adverse testimonial evidence of consciousness of guilt." Commonwealth v. Lopes, 459 Mass. at 170, quoting from Opinion of the Justices, supra at 1211. See Commonwealth v. Conkey, 430 Mass. 139 , 142 (1999) ("evidence admitted to show consciousness of guilt is always testimonial because it tends to demonstrate that the defendant knew he was guilty"). "[I]f refusal evidence has relevance to any issue essential to the prosecution's case, it is because it is reflective of the knowledge, understanding, and thought process of the accused." Opinion of the Justices, supra at 1211. For this reason, evidence of the refusal to perform field sobriety tests when directed or requested by the police to do so violates the privilege against self-incrimination safeguarded by art. 12. Ibid. [Note 6] Contrast

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Commonwealth v. O'Laughlin, 446 Mass. 188 , 205-206 (2006) (evidence that the defendant initially consented to a police request to search his apartment and test a red stain on a closet door but later changed his mind and removed the stain was admissible because it was necessary to explain the loss of evidence and to put the defendant's destruction of the evidence in context).

We have previously held that once a person gives consent to take a test, his physical actions in performing the test are not testimonial and may be the subject of testimony at trial. See Commonwealth v. Curley, 78 Mass. App. Ct. 163 , 168 (2010) (observations of the defendant's "attempts" to take the breathalyzer test not tantamount to evidence of his refusal to take the test). The basis for distinguishing between the defendant's refusal to take a test and volunteered statements made while attempting to perform the test does not turn on the distinction between testimonial and physical evidence (statements are clearly testimonial), but instead on the presence or absence of governmental compulsion. Once the defendant agrees to take the test and attempts it, [Note 7] his expressions of difficulty or inability to perform or to complete it, such as "I can't do this," "I give

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up," or "I've had too much to drink," are not the products of compulsion and thus are admissible. See Commonwealth v. Sands, 424 Mass. 184 , 189 (1997) ("Further, the defendant's claim that his voluntary admission violates art. 12 of the Massachusetts Declaration of Rights is without record support. There was no evidence that the defendant did not voluntarily furnish the communication that he was over the legal limit of intoxication, and there was no 'Catch-22' situation compelling him to furnish evidence. The defendant merely had to say, 'No' to withhold consent to taking the breathalyzer test, but instead, he blurted-out that he was intoxicated beyond the legal limit").

Even if the defendant agrees to perform field sobriety tests and attempts one or more of the tests administered by the officer, any subsequent refusal is similarly inadmissible as compelled testimony. See Commonwealth v. Grenier, 45 Mass. App. Ct. 58 , 60-61 (1998). By contrast, in this case the defendant did not refuse to perform field sobriety tests; instead, he attempted unsuccessfully to do so. In such circumstances, the defendant's comment ("I can't do this"), while testimonial, was not the result of governmental compulsion and thus is admissible in evidence.

Judgment affirmed.