COMMONWEALTH vs. STEPHEN M. MCGRAIL.

LYNCH, J. The defendant appeals from his convictions of several motor vehicle offenses and the denial of his motion

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for a new trial. We transferred the case from the Appeals Court to this court on our own motion. [Note 1] We reverse the defendant's convictions and remand the case to the jury session of the Framingham District Court.

The defendant was charged with operating under the influence of intoxicating liquor and operating a motor vehicle negligently so as to endanger in violation of G. L. c. 90, Section 24 (1990 ed.), operating a motor vehicle without a license in violation of G. L. c. 90, Section 10 (1992 ed.), and a civil marked lanes infraction in violation of G. L. c. 89, Section 4A (1992 ed.). On the first day of trial, the defendant filed a motion in limine to prohibit the Commonwealth from introducing evidence that the defendant refused to perform a field sobriety test at the scene of the arrest. After the defendant's motion was denied, the defendant was tried before a jury of six in the Framingham District Court and was found guilty of operating under the influence of intoxicating liquor, and operating to endanger. He was found "responsible" as to the civil marked lanes violation.

1. Statement of the facts. From the evidence presented the jury could have found the following facts. On March 5, 1991, at 12:30 A.M., a Framingham police officer observed a pickup truck turning onto Concord Street from School Street in Framingham. Concord Street is a two-lane road that is paved and well maintained. The officer saw the truck make a wide turn into the northbound lane of Concord Street while continuing to travel southbound. The truck then turned left onto A Street and pulled into a Mobil gasoline station located at the corner of A and Concord Street. [Note 2] After driving through the Mobil station the truck returned to A Street. For approximately one-eighth of a mile, the truck drove in the northbound

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lane of A Street while heading southbound. When the truck turned right into the North High School parking lot, the officer activated both his cruiser's emergency blue lights and its flashing high beams. As the truck continued through the parking lot, the officer also activated the cruiser's siren. The truck then turned onto Lowther Road, swerving a number of times. Finally, the truck stopped approximately five feet from the curb at the end of Lowther Road. [Note 3]

When the officer approached the truck, he asked the only occupant, the defendant, to produce his driver's license and registration. [Note 4] After asking the officer what he wanted, the defendant told the officer to leave him alone. The officer again asked the defendant to produce the requested documents. After noticing that the defendant's breath smelled of alcohol, and observing that his speech was heavily slurred, that his eyes were bloodshot and watery, and that his face was very flushed, the officer asked the defendant to step out of the truck. The officer noticed that the defendant was having trouble maintaining his balance, and that he had to hold onto the side of the truck so that he could walk to the rear of the truck as the officer instructed.

When the defendant finally approached the curb at the rear of the truck, the officer asked the defendant to perform some field sobriety tests. The officer gave the defendant instructions as to how each test was to be performed and also explained the purpose of each test. The defendant stated that "[he was] not going to do any tests." Based on his observations, the officer formed the opinion that the defendant was highly intoxicated and placed him under arrest. Pursuant to police procedures, the officer then performed an inventory

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search of the defendant's truck, finding a bag containing five empty "Lite" beer cans and a one-half pint of whiskey that was three-quarters empty on the passenger floor of the truck's cab. The truck's cab also contained a full quart of beer.

The officer then brought the defendant to the police station. At the station the booking officer indicated that the defendant had trouble responding to the questions being asked. More specifically, the defendant had trouble spelling his last name and it took him several tries before he was able to recite his home telephone number correctly. The booking officer also indicated that the defendant slurred his speech when responding to questions.

2. Refusal evidence. The defendant argues that his right against self-incrimination under art. 12 of the Massachusetts Declaration of Rights was violated when the judge admitted evidence of his refusal to submit to field sobriety tests. [Note 5] Article 12 provides that no person shall be compelled in any criminal proceeding to furnish incriminating evidence against himself. [Note 6] We have stated that, although the privilege against self-incrimination under art. 12 is broad, it protect only against the compulsion of communications or testimony and not against the production of real or physical evidence, such as fingerprints, photographs, lineups, blood samples, handwriting, and voice exemplars. [Note 7] Commonwealth v. Brennan, 386 Mass. 772, 776, 780 (1982). Moreover, in order to establish a violation of the privilege, a defendant must not only establish that there was a communication, but also establish that such communication was compelled by the government.

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Opinion of the Justices, 412 Mass. 1201, 1206 (1992). Therefore, in this case, we must determine whether a refusal to take a field sobriety test constitutes testimonial evidence, and if so, whether the use of such evidence constitutes governmental compulsion.

We begin our analysis by examining whether the evidence of the defendant's refusal is testimonial or real. Ordinarily, 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, supra at 1209. Such refusal evidence, therefore, would be relevant to show that the defendant believed that the test results would tend to incriminate him. Because the refusal, in essence, constitutes testimony concerning the defendant's belief on a central issue to the case, we conclude that the evidence of the defendant's refusal to submit to a field sobriety test constitutes testimonial or communicative evidence. See Opinion of the Justices, supra (evidence of defendant's refusal to take breathalyzer test is testimonial evidence); Commonwealth v. Brennan, supra at 777 ("testimonial evidence" reveals a person's knowledge or thoughts concerning some fact). This brings us to the issue of whether evidence of refusal can also be said to be compelled.

The Justices recently considered the constitutionality of a proposed law making evidence of a person's refusal to take a breathalyzer test admissible in a criminal trial. [Note 8] Opinion of the Justices, supra. The Justices noted that States that permit the introduction of such evidence do not compel but only encourage a defendant to take such test. Id. at 1211. See South Dakota v. Neville, 459 U.S. 553, 564 (1983) (statutes encourage person to take test because "inference of intoxication

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arising from a positive blood-alcohol test is far stronger than that arising from a refusal to take the test").

The Justices disagreed with this reasoning, concluding instead that statutes that allow for the admission of refusal evidence compel the accused "to choose between two alternatives, both of which are capable of producing evidence against him. [Such statutes], therefore, [use] 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." Opinion of the Justices, supra at 1211. The Justices therefore advised the Legislature that the proposed statute would be unconstitutional under art. 12 because it would compel a defendant to furnish evidence against himself. Id. See Commonwealth v. Lydon, 413 Mass. 309, 313-315 (1992) (erroneous to admit evidence of defendant's refusal to have hands swabbed for gun powder residue because use violated defendant's privilege against self-incrimination secured by art. 12).

We see very little difference between evidence of refusal to take a breathalyzer test and refusal to take a field sobriety test. [Note 9] The judge correctly instructed the jury that, in Massachusetts, a driver is under no legal obligation to submit to field sobriety tests even if requested to do so. Because the defendant was not required to perform the tests, it would be unsound to allow the Commonwealth to use evidence of the defendant's refusal against him at trial. More specifically: "Because [the] defendant had no obligation to take the test, there [should] be no conditions placed on his refusal. Use of

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the fact that he refused enables the [Commonwealth] to obtain communicative evidence to which it would otherwise have no right, as a result of [the] defendant's refusal to provide noncommunicative evidence to which it also had no right." State v. Green, 68 Or. App. 518, 526 (1984). Moreover, if we were to allow such refusal evidence to be used against the defendant at trial, then the only way for the defendant to prevent the use of such refusal evidence would be for him to take the field sobriety test. Therefore, allowing such refusal evidence to be admissible at trial would compel defendants to choose between two equally unattractive alternatives: "take the test and perhaps produce potentially incriminating real evidence; refuse and have adverse testimonial evidence used against him at trial." Opinion of the Justices, supra at 1211. As a result, we conclude that the refusal evidence should not have been admitted since its use violated the defendant's privilege against self-incrimination secured by art. 12. See State v. Green, supra (refusal evidence compelled and therefore inadmissible). Moreover, even though there was ample evidence admitted at trial with regard to the defendant's state of intoxication, we cannot conclude that admitting such evidence was harmless beyond a reasonable doubt. Commonwealth v. Perrot, 407 Mass. 539, 548-549 (1990).

3. Retroactivity. Before briefs had been filed in this case, and prior to oral argument, our opinion in Commonwealth v. Zevitas, 418 Mass. 677 (1994), was released. There we concluded that the instruction mandated by G. L. c. 90, Section 24 (1) (e), violated the self-incrimination provisions of art. 12.

The defendant argues on appeal that it was error for the judge to give that mandated instruction concerning the lack of evidence of a breathalyzer test. Since we reverse the defendant's convictions on other grounds, we need not address the question whether the Zevitas holding should be applied retroactively to the facts of the instant case. However, we observe that, where evidence of the defendant's refusal to take a field sobriety test had been introduced, the mandated instruction enhanced the likelihood that the jury would draw

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the impermissible inference that the defendant refused to take both types of tests because he was too intoxicated to pass either test.

The Commonwealth argues that Zevitas established a new rule not clearly foreshadowed by prior precedents and, therefore, it should not be applied retroactively. Commonwealth v. Breese, 389 Mass. 540, 541-543 (1983). The Commonwealth also contends that the issue is not before us because the defendant failed to object to the charge on that basis. Generally, new constitutionally based rules will be applied to all cases pending on direct appeal as to which the issue was preserved below. Commonwealth v. Figueroa, 413 Mass. 193, 202-203 (1992), and cases cited. Because it does not appear that the issue decided by Zevitas was raised below, and because if applied it would not affect the outcome of this case, we decline to reach the question.

For the foregoing reasons, we hold that both of the defendant's convictions should be reversed and the case should be remanded to the jury session of the Framingham District Court for a new trial.

So ordered.