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22-P-551 Appeals Court

COMMONWEALTH vs. WADE C. DEROSIER.

No. 22-P-551.

Middlesex. April 6, 2023. - October 27, 2023.

Present: Rubin, Shin, & Englander, JJ.1

Motor Vehicle, Operating under the influence. Alcoholic 

Liquors, Motor vehicle. Evidence, Breathalyzer test, 

Videotape. Practice, Criminal, Instructions to jury.

Complaint received and sworn to in the Lowell Division of 

the District Court Department on July 16, 2019.

The case was tried before Stacey J. Fortes-White, J.

Andrew Courossi for the defendant.

Chia Chi Lee, Assistant District Attorney, for the 

Commonwealth.

1 This case was originally heard by a panel comprised of 

Justices Rubin, Englander, and Brennan. After Justice Brennan 

recused himself, the case was submitted on the record and briefs 

to Justice Shin, who took part in the decision in accordance 

with Mass. R. A. P. 24 (a) & (b), as appearing in 481 Mass. 1654 

(2009).
2

ENGLANDER, J. A District Court jury found the defendant 

guilty of operating a motor vehicle under the influence of 

intoxicating liquor (OUI), G. L. c. 90, § 24 (1) (a) (1).2 On 

appeal, the defendant claims the trial judge erred (1) by 

admitting the video recording of his booking process (booking 

video), in which a breathalyzer machine was visible in the 

booking room, and (2) by giving an instruction regarding the 

lack of breathalyzer evidence, in response to a question from 

the jury. We affirm.

Background. We summarize the facts as the jury could have 

found them, reserving certain details for later discussion. At 

approximately 3:15 A.M. on July 14, 2019, State police troopers3

stopped the defendant's car for crossing over marked lanes while 

driving on Route 495 in Lowell. When informed of the reason for 

the stop, the defendant stated that he was tired, but also 

acknowledged having consumed three beers about three hours 

earlier. The troopers noticed that the defendant had bloodshot 

and glassy eyes, slightly slurred speech, and a strong odor of 

alcohol. 

2 The trial judge also found the defendant responsible for a 

civil marked lanes violation, G. L. c. 89, § 4A.

3 Trooper Matthew Devito, in his first year with the State 

police, was accompanied by Trooper David Dumont, a seven-year 

State police veteran, who acted as a "trooper coach" for this 

arrest. 
3

The troopers asked the defendant to exit the vehicle to 

perform three field sobriety tests. When the defendant stepped 

out of the car, he was "a little unsteady on his feet." Before 

the tests, the defendant stated that he was able to recite the 

English alphabet and had "some college" education. He also 

told the troopers that he had a knee injury, and they noticed 

that the defendant had a brace on his right knee. The 

defendant failed the nine-step walk and turn test because he 

did not take the steps heel to toe on all eighteen steps and 

made an improper pivot. The defendant's performance on the 

one-leg stand test, which required him to raise one of his feet 

six inches off the ground for thirty seconds, was described by 

one trooper as "excellent." The defendant failed the final 

test, reciting the alphabet from letters B to Y, by "[skipping] 

over multiple letters" and having to restart several times. 

Both troopers concluded that the defendant was "drunk." The 

defendant was arrested and transported to the State police 

barracks in Andover, where his booking was recorded by a video 

camera. 

The defendant did not testify or offer any evidence. His 

theory of defense, presented through cross-examination and 

closing argument, was that he was tired as opposed to 

intoxicated, and that the Commonwealth did not prove its case 

beyond a reasonable doubt. 
4

Prior to trial, the defendant moved, in limine, to exclude 

the booking video because the breathalyzer machine was visible 

in the booking room. He argued that admission of the booking 

video would be unduly prejudicial because jurors might see the 

machine and consequently assume that he refused the test.4 The 

Commonwealth countered that the booking video was important 

evidence of "the defendant's condition after arrest and you also 

see him moving his injured knee and him walking, so it shows his 

injured knee would not have affected his ability to perform 

[field sobriety tests]." The booking video could not be 

redacted so that the breathalyzer machine was not visible; 

notably, there were other machines visible on the booking desk 

and in the room. The judge watched the booking video and 

concluded that "there is probative value to the video because 

. . . the jury will be able to see [the defendant] stretching 

his leg." She determined that there was no "prejudice to the 

defendant" and noted that, if anything, the booking video was 

"more helpful to the defense" based on the defendant's 

appearance and demeanor in the booking video. The judge 

4 The defendant apparently took a breath test (defense 

counsel so stated); however, the Commonwealth did not seek to 

offer the result. According to the prosecutor, "the machine was 

only certified two weeks after the [defendant's arrest], so the 

certification was out of date." 
5

admitted the booking video into evidence over the defendant's 

objection. 

During deliberations, the jury asked four questions, 

including "[w]as the standard breathalyzer test offered or 

refused? The test equipment was visible in the booking room."5

After consulting with defense counsel and the Commonwealth, the 

judge indicated that she intended to respond by reminding the 

jury to decide the facts solely based on the evidence at trial,6

and asked defense counsel if he wanted an instruction pursuant 

to Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198-199 (2001) 

(Downs instruction) on the absence of breathalyzer evidence. 

Although defense counsel acknowledged that "the Downs

instruction is a normal course the way that the type of 

instruction that would be given," he instead requested a "unique 

instruction" that the "Commonwealth [was] not using 

5 The other three questions the jury asked, as read by the 

judge, were:

1. "[T]he state trooper indicated the defendant had three 

drinks. . . . The defense attorney said, suggested, the 

defendant had three beers. What was it?"

2. "Were any containers of alcoholic beverages found in the 

vehicle?"

3. "Given his knee injury, was he on medication?" 

6 The judge told the jury to imagine all the trial evidence 

in a box, that their verdict must be based on what was inside 

the box, and that they must avoid speculation, conjecture, or 

guesswork. 
6

[b]reathalyzer tests at all during that period of time."7 The 

trial judge responded, "I don't think it's fair to say they 

weren't using it at that -- I don't know that that's the case." 

The judge indicated that the Downs instruction was "the 

appropriate instruction to give, and it's what we typically 

give. If you're objecting to me giving that instruction and you 

want to craft something else for me to give then -- I'm happy to 

consider it." The defendant did not suggest a different 

instruction nor object to the Downs instruction at that time. 

The judge delivered the Downs instruction as follows:

"There is no evidence with regard to the [b]reathalyzer. 

You are not to mention it or consider in any way 

whatsoever, either for or against either side. There is no 

evidence of [b]reathalyzer. Do not consider it in any way. 

Do not mention it, and put it completely out of your mind." 

After the jury were sent out to resume deliberations, the judge 

asked defense counsel whether he was satisfied with the 

instruction. Defense counsel replied, "I'm not inclined to say 

that I'm satisfied with that one, but I would just ask you to 

note my concerns and I guess my objection for the record." 

Discussion. 1. Admission of the booking video. We first 

address the defendant's contention that admission of the booking 

7 The period of presumptive exclusion of Draeger Alcotest 

9510 breathalyzer results in OUI prosecutions ended April 18, 

2019 – three months before the defendant's arrest. See 

Commonwealth v. Hallinan, 491 Mass. 730, 738, 748 (2023). See 

generally Commonwealth vs. Ananias, Mass. Dist. Ct., No. 142284 

(Lowell Div. Jan. 9, 2019).
7

video was prejudicial error. "Because the defendant objected to 

the evidentiary ruling below, we review the ruling for 'an abuse 

of discretion, which requires a demonstration that the judge 

made a clear error of judgment in weighing the factors relevant 

to the decision such that the decision falls outside the range 

of reasonable alternatives'" (quotation omitted). Commonwealth

v. Babcock, 100 Mass. App. Ct. 527, 528 (2021), quoting 

Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 476 (2017). We 

discern no such error.

Evidence is relevant and admissible when it has some 

tendency to "make a consequential fact more or less probable 

than it would be without that evidence." Commonwealth v. Moore, 

480 Mass. 799, 808 (2018)., In a typical OUI case, a defendant's 

"driving performance, appearance, demeanor, execution of field 

sobriety tests, and conduct at booking" are relevant "proof of 

impaired operation." Commonwealth v. Hourican, 85 Mass. App. Ct. 

408, 417 (2014). A trial judge may exercise her discretion and 

exclude relevant evidence where its probative value is 

substantially outweighed by the danger of unfair prejudice. 

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). However, 

"[b]y design, all evidence is meant to be prejudicial; it is 

only unfair prejudice which must be avoided." Commonwealth v. 

Kindell, 84 Mass. App. Ct. 183, 188 (2013), quoting United 

States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989). 
8

"Evidence is unfairly prejudicial only if it has 'an undue 

tendency to suggest decision on an improper basis, commonly, 

though not necessarily, an emotional one'" (citations omitted). 

Id., quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980).

Here, the booking video was relevant to support (or to 

refute) the Commonwealth's contention that the defendant's 

inability to satisfactorily complete the walk and turn test 

stemmed from his intoxication rather than his knee injury. To 

the extent the judge anticipated this would be a contested issue 

at trial, her instincts were borne out by defense counsel's 

cross-examination of Trooper Devito, in which he asked whether 

"[the defendant] was having difficulty doing the pivot turn 

because of his knee brace." Here the booking video evidence of 

the defendant from shortly after the roadside tests were 

administered was highly relevant evidence of the defendant's 

ability to walk and of any limitations due to injury. 

Furthermore, we agree with the trial judge's assessment 

that the probative value of the booking video was not 

substantially outweighed by any risk of unfair prejudice. 

Having reviewed the booking video, we note that there is nothing 

to indicate that one of the machines on the booking desk was a 

breathalyzer (it looks like a copier or fax machine). Although 

"there is widespread public information and common knowledge 

about breathalyzer testing," Commonwealth v. Cueva, 94 Mass. 
9

App. Ct. 780, 785 (2019), quoting Downs, 53 Mass. App. Ct. at 

199, the judge's implicit reasoning that the jury would not 

recognize the breathalyzer machine was not a "clear error of 

judgment." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 

(2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 

15 (1st Cir. 2008). The fact that the jury did recognize the 

breathalyzer machine in the booking video does not retroactively 

render the trial judge's decision to admit the video an abuse of 

discretion, especially when admission of the evidence was 

combined with limiting instructions, discussed infra. See 

Commonwealth v. Peno, 485 Mass. 378, 395-396 (2020). The judge 

did not abuse her discretion by admitting the booking video into 

evidence. See Commonwealth v. Fan, 490 Mass. 433, 443 (2019), 

quoting Commonwealth v. Sicari, 434 Mass. 732, 752 (2001), cert. 

denied, 534 U.S. 1142 (2002) ("In weighing the probative value 

of evidence against any prejudicial effect it might have on a 

jury, we afford trial judges great latitude and discretion").

2. Supplemental jury instruction regarding breathalyzer. 

The defendant also argues that it was prejudicial error for the 

judge to give the Downs instruction over his objection. In 

Commonwealth v. Wolfe, 478 Mass. 142, 149-150 (2017), the 

Supreme Judicial Court held, as an exercise of its 

superintendence power, that "the better practice is for a judge 

to refrain from giving a Downs-type instruction absent a request 
10

by the defendant or some rare set of facts that specifically 

directs the jury's attention to the absence of alcohol-test 

evidence" (emphasis added). The Wolfe court's concern was that 

giving the Downs instruction could implicate the defendant's 

protection against self-incrimination under art. 12 of the 

Massachusetts Declaration of Rights by drawing the jury's 

attention to the lack of alcohol-test evidence, and thereby 

suggesting that the defendant may have refused a test or feared 

an unfavorable result. Id. at 145-146; Commonwealth v. Moreno, 

102 Mass. App. Ct. 321, 327 (2023). See also Opinion of the 

Justices, 412 Mass. 1201, 1209, 1211 (1992) (refusal evidence 

may be used to show defendant feared failing alcohol test and 

thus held to violate privilege against self-incrimination under 

art. 12 of Massachusetts Declaration of Rights).

The direction of the Wolfe court was not absolute, however. 

It came with a caveat, and we can conceive of few circumstances 

that fall more squarely in the category of a "rare set of facts 

that specifically directs the jury's attention to the absence of 

alcohol-test evidence," Wolfe, 478 Mass. at 150, than where the 

jurors have noted the presence of a breathalyzer machine in a 

video exhibit, and asked a specific question about whether "the 

standard breathalyzer test" was "offered or refused." In 

unusual circumstances such as these, Wolfe left the question of 
11

the proper instruction to the judge's discretion.8 The judge 

thus was not required by Wolfe to ignore the reality that here 

the breathalyzer issue was squarely in the minds of the jury, 

and that inasmuch as the booking video would necessarily remain 

with the jurors in the deliberation room, the breathalyzer 

question was not likely to leave their focus absent specific 

instruction. The judge's determination that a Downs-type 

instruction was necessary in these circumstances was logical and 

sensible. 

The defendant points to a footnote in Wolfe commenting 

that, in response to a jury question about the absence of 

alcohol test evidence, "it is the better practice to simply 

reiterate the general instruction not to speculate about matters 

not in evidence and, to the extent possible, refrain from 

reinforcing the jury's focus on items not in evidence by 

mentioning the lack of alcohol-test evidence." Id. at 150 n.13. 

The question from the jury in this case, however, was not just a 

general question about the lack of alcohol test evidence, but a 

specific question arising out of video evidence, which the jury 

8 At several points, the dissent overstates the holding of 

Wolfe, contending that a trial judge cannot give the Downs

instruction unless defense counsel agrees. See, e.g., dissent 

at 1 ("giving the Downs instruction . . . in the absence of a 

request from the defendant is reversible error"). The dissent's 

contention is manifestly at odds with the Wolfe court's carveout for a "rare set of facts" -- facts which are present here.
12

saw and processed, that there was a breathalyzer machine in the 

room with the defendant. Moreover, as we recognized in Moreno, 

"although the court in Wolfe stated that it is the better 

practice to respond to a jury question with a general 

instruction only, the court did not state that it is error to 

deliver the Downs instruction as well." Moreno, 102 Mass. App. 

Ct. at 328.9

Under the circumstances, the judge did not commit error by 

exercising her discretion to forcefully respond to the jury's 

question with instructions that included the more specific Downs

admonition "not to mention [the breathalyzer] or consider it in 

any way whatsoever, either for or against either side. There is 

no evidence of a [b]reathalyzer. Do not consider it in any way. 

Do not mention it, and put it completely out of your mind."

9 We note that contrary to the defendant's (and the 

dissent's) assertions, it does not appear that the defendant 

properly objected to the Downs instruction. As described above, 

when the judge proposed the Downs instruction, defense counsel 

asked for his own "unique" instruction instead. The judge 

declined to give the defendant's proposed instruction (because 

she was not satisfied that it was accurate), and then again 

proposed Downs, stating "[i]f you're objecting to me giving that 

instruction and you want to craft something else for me to give 

the[m] -- I'm happy to consider it." The defendant did not then 

object, and only asked that his objection be "note[d]" after the 

Downs instruction had been given and the jury had returned to 

deliberations. In Wolfe, the court held that the error was in 

giving the Downs instruction, as part of the original charge, 

over the defendant's objection. See Wolfe, 478 Mass. at 150. 

The record here is quite different, and for this reason as well 

we do not believe that it was error under Wolfe to give the 

instruction.
13

Judgment affirmed.
RUBIN, J., dissenting. Although the court majority does 

not say so explicitly, giving the Downs instruction, see 

Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001), in the 

absence of a request from the defendant is reversible error 

unless the Commonwealth can demonstrate no prejudice. 

Commonwealth v. Wolfe, 478 Mass. 142, 146 (2017) (because a 

Downs instruction may "unnecessarily introduce[] the specter of 

refusal evidence into the jury room and . . . [may] cause the 

jury specifically to focus on the absence of breathalyzer 

evidence," giving that instruction "over the defendant's 

objection . . . was error."). "Animating the court's concern 

[in Wolfe] was that the Downs instruction could implicate the 

defendant's protection against self-incrimination under art. 12 

of the Massachusetts Declaration of Rights because it draws the 

jury's attention to the lack of alcohol-test evidence, 

suggesting that the defendant may have refused a test or feared 

an unfavorable result." Commonwealth v. Moreno, 102 Mass. App. 

Ct. 321, 327 (2023). This wasn't simply a matter of saying what 

"the better practice" is. The Supreme Judicial Court in Wolfe, 

announcing a prospective rule, decided that, utilizing its 

supervisory power, it would codify the "better practice" into

law, making it mandatory. Wolfe, 478 Mass. at 149.

Thus, in spelling out what is required, it said that "as an 

exercise of our superintendence power, we conclude that, as a 
2

matter of procedure, the better practice is for a judge to 

refrain from giving a Downs-type instruction absent a request by 

the defendant or some rare set of facts that specifically 

directs the jury's attention to the absence of alcohol-test 

evidence." Id. at 149-50. In the footnote at the end of that 

sentence, the court continued, "Further, when a jury ask a 

question about the absence of alcohol-test evidence, as occurred 

in the defendant's first trial, we think it is the better 

practice to simply reiterate the general instruction not to 

speculate about matters not in evidence and, to the extent 

possible, refrain from reinforcing the jury's focus on items not 

in evidence by mentioning the lack of alcohol-test evidence." 

Id. at 150. The reason defense counsel is permitted to make the 

decision in each case is because, with the myriad possible facts 

and circumstances involved in any trial, it is "difficult to 

assess whether a Downs-type instruction 'is beneficial to a 

particular defendant . . . .'" Id. at 148. The court concluded 

that, despite the apparent point of its language, the Downs

instruction may "have the opposite of the intended effect, that 

is, it will cause the jury specifically to focus on the absence 

of breathalyzer evidence." Id. at 146. The court concluded, 

given the double-edged nature of the instruction, that rather 

than articulating a blanket prohibition, the "safer approach is 
3

to leave such an instruction to the defendant's choice." Id. at 

148.

In this case, the judge improperly gave the Downs

instruction over the defendant's objection: The jury, 

recognizing the breathalyzer machine in the booking video –- and 

I agree with the court majority's conclusion that there was no 

error in the judge's ex ante decision to allow that video to be 

shown –- asked "Was the standard [b]reathalyzer test offered or 

refused? The test equipment was visible in the booking room." 

In fact, if the representations of counsel at trial were 

correct, the test was either offered and taken by the defendant 

or never offered to him. He did NOT refuse the test. We don't 

know the results, we couldn't in any event know whether they 

were accurate, and they were not submitted to the jury. This is 

because, according to the prosecutor, the machine had not been 

calibrated.1 The lack of calibration led the District Attorney 

1 The court majority may be read to suggest this has 

something to do with the grave problems with the Draeger 

Alcotest 9510 breathalyzer device, see ante at n.7, but 

there is nothing in the record indicating that the Alcotest 9510 

was the issue in this case. For some period of time, the 

District Attorneys were not utilizing the results of tests 

conducted with the Alcotest 9510 due to failures with respect to 

the procedures for calibrating and certifying the machines, as 

well as "egregious government conduct" by the State police 

office of alcohol testing (OAT) in covering up hundreds of 

failed calibration tests with respect to this machine. See 

generally Commonwealth v. Hallinan, 491 Mass. 730, 748 (2023). 

The court majority says that "[t]he period of presumptive 

exclusion of Draeger Alcotest 9510 breathalyzer results in OUI 
4

properly to conclude the reliability of the breathalyzer test 

results could not be known and thus they could not be introduced 

in court. 

When the judge received the jury's question, she asked 

defense counsel if he wanted the Downs instruction. Although no 

one mentioned or appeared aware of Wolfe, defense counsel said 

he did not, and specified that "I'm concerned about the negative 

inference that [the Downs instruction] would provide, that they 

would infer that he refused it." Counsel instead proposed an 

alternative instruction, one that had, he said, been given in 

another case in which the jury asked a similar question, that 

"that [the] Commonwealth [was] not using [b]reathalyzer tests at 

all during that period of time." Again he stated, "I would 

request that that instruction be given, given the circumstances 

and the fact that they saw [the] machine because of the 

inference that might be drawn even after your instruction that 

he refused to test." The proposed instruction would have 

prosecutions ended April 18, 2019 –- three months before the 

defendant's arrest," ante n.7, but that is only half true. This 

refers only to the court order creating that presumption, and 

the Superior Court lifted that presumption after the arrest in 

this case, retroactively to April 18, 2019, see Hallinan, supra

at 743; there is nothing in the record about how the District 

Attorney's Office for Middlesex County handled Alcotest 9510 

test results, nor when it concluded that test results from the 

Alcotest 9510 could be known to be reliable, and thus concluded 

they could be introduced in court. In any event, none of this 

has anything to do with when the particular device used in this 

case was actually calibrated.
5

informed the jury that the Commonwealth was not using 

breathalyzer tests, at least from this machine, at the time the 

defendant was arrested, and would have obviated any speculation 

about whether he had refused a test. The judge, however, 

rejected the instruction, and overruled the objection, saying, 

"I think [the Downs instruction is] the appropriate instruction 

to give, and it's what we typically give."

It was error for the judge to give the jury the Downs

instruction over the objection of the defendant. See Wolfe, 478 

Mass. at 150 ("In this case, the instruction regarding alcoholtest evidence was given over the defendant's objection. Based 

on our analysis today, this was error.").2 Prejudice was shown 

with about as much strength as it ever could be. In assessing 

prejudice, "we inquire[] whether there is a reasonable 

2 The Commonwealth states that "the defendant preserved the 

issue." The court majority's sua sponte suggestion he did not 

is incorrect. When the judge proposed the Downs instruction, 

defense counsel said, "I'm concerned about the negative 

inference that that would provide, that they would infer that he 

refused it," which was an objection to the instruction. Defense 

counsel proposed an instruction, and the judge rejected it, 

saying "I think [the Downs instruction is] the appropriate 

instruction to give. . . .[i]f you're objecting to me giving 

that instruction and you want to craft something else for me to 

give then -- I'm happy to consider it."

The judge's subsequent statement that she would consider 

some other instruction if proffered by the defendant cannot undo 

the defendant's previous objection which was overruled; a judge 

cannot condition the right to make an objection on counsel 

providing a different instruction; nor can a judge give an 

erroneous instruction because the objecting defendant has not 

given the judge an alternative to which the judge agrees.
6

possibility that the error might have contributed to the jury's 

verdict" (citation omitted). Id. Here, the jury itself noted 

the breathalyzer machine it saw and asked if the defendant had 

refused to take a breathalyzer test. Given that defense 

counsel, given authority over the question by Wolfe, determined 

(and explicitly stated) that there was a risk the jurors would 

infer that the defendant refused the test if the Downs 

instruction were given," as in Wolfe, "we cannot fairly say that 

'the jury would have inevitably reached the same result if the 

judge had omitted the challenged instruction.'" Wolfe, 478 

Mass. at 151, quoting Commonwealth v. Buiel, 391 Mass. 744, 747 

(1984).

The court majority seeks to shoehorn this case into the 

language of the Wolfe opinion that the Downs instruction might 

properly be given if there is "some rare set of facts that 

specifically directs the jury's attention to the absence of 

alcohol-test evidence." Wolfe, 478 Mass. at 150.3 This is not 

that rare case. To begin with, the Wolfe opinion clearly did 

not intend the "rare set of facts" exception to apply to a 

question by the jury about whether there was an offer of, or a 

3 Given my lengthy discussion of this language here, I am 

baffled by the majority's suggestions that I "overstate[] the 

holding of Wolfe" by ignoring that language. See ante

at n. 8. As the reader can see, I don't ignore it, I 

explain why it is inapplicable here, something to which the 

majority proffers no reply.
7

refusal to take, a breathalyzer test. It included a footnote 

immediately after that phrase making clear that such "a question 

about the absence of alcohol-test evidence" did not warrant 

giving the Downs instruction over a defendant's objection. See 

id. at 150 n. 13. In fact, the court in Wolfe said that it had 

"trouble imagining" a case where giving a Downs instruction over 

the defendant's objection could be justified, id. at 142 n.2. 

Yet it clearly imagined, indeed it discussed, an example in 

which a question like that at issue in this case was asked by 

the jury, indicating that such a question cannot justify giving 

a Downs instruction over objection. Further, the "rare set of 

facts" mentioned by the court must refer to the facts in 

evidence, because what is being permitted is an instruction that 

is designed to, and in some circumstances may, prophylactically 

prevent speculation. Once the jury has itself already asked 

about whether a breathalyzer was offered or refused, the risk of 

the Downs instruction is heightened, not reduced. Contrary to 

the majority's conclusion that "the judge's determination that a 

Downs-type instruction was necessary in these circumstances was 

logical and sensible," ante at , the decision to give the 

instruction contradicts the very legal premise of Wolfe and was 

legal error under that decision. Again, the court explained 

that when such a question is asked, the Downs instruction should 

not be given over the defendant's objection. Moreno, 102 Mass. 
8

App. Ct. at 323, in which defense counsel agreed to the Downs

instruction, is not to the contrary. 

The court majority asserts that unlike this case, the jury 

question discussed in Wolfe was not based on evidence that 

included "the presence of a breathalyzer machine," as though 

that distinction makes this a stronger case for giving the Downs

instruction. To the contrary, it makes this a weaker case for 

giving that instruction. Here, the jury had not merely asked 

about a breathalyzer test, they noted that they had seen the 

breathalyzer machine! The concern about the jury using Downs to 

focus on the possibility of refusal thus is heightened, not 

diminished, when compared with a generic question about 

breathalyzer tests.

The court majority, however, actually praises the 

"forceful[]" use of "the more specific Downs admonition," 

apparently because "the breathalyzer issue was squarely in the 

mind of the jury, and that inasmuch as the booking video would 

necessarily remain with the jurors in the deliberation room," 

without the Downs instruction, "the breathalyzer question was 

not likely to leave their focus." Ante at .

But the entire point of Wolfe is that the presumption on 

which the majority opinion rests, that the Downs instruction is 

an admonition that will work to eliminate the jury's focus on 

the absence of a breathalyzer test, does not always apply to the 
9

Downs instruction. Wolfe, 478 Mass. at 147. The court could 

not have been clearer that the basis of its decision was that 

the Downs instruction may "have the opposite of the intended 

effect, that is, it will cause the jury specifically to focus on 

the absence of breathalyzer evidence." Wolfe, supra at 147-148. 

In its reality-based decision, the Supreme Judicial Court gave 

defense counsel the authority to determine when that was not a 

problem, and held the Downs instruction may not be given over 

defendant's objection.

The defendant in this case did not refuse a breathalyzer, 

but when the jury asked if he had, the judge improperly provided 

them, over the defendant's objection, an instruction that 

"suggest[s] that the defendant may have refused a test or feared 

an unfavorable result." Moreno, 102 Mass. App. Ct. at 327. He 

is entitled to a new trial. With respect, I dissent.