A Driver’s Refusal To Take a Breath Test Is Not Evidence of Guilt: Commonwealth v. Zevitas
When a driver refuses a breathalyzer after an OUI arrest, jurors may be tempted to draw an obvious inference: the driver refused because the driver expected to fail.
Massachusetts law does not permit the Commonwealth to make that argument.
In Commonwealth v. Zevitas, 418 Mass. 677 (1994), the Supreme Judicial Court held that using a defendant’s refusal to submit to a blood-alcohol test as evidence against him would violate the privilege against self-incrimination protected by Article 12 of the Massachusetts Declaration of Rights.
The decision went a step further. The prosecution had not introduced direct testimony that Zevitas refused a test. Instead, the trial judge gave a statutorily required instruction explaining that a driver had the right to accept or refuse testing and that the jury should not speculate about why no test result existed.
The SJC concluded that even this supposedly neutral instruction went too far. It effectively told the jury that Zevitas had refused the test and invited the very inference that Article 12 prohibited.
The Accident and Prosecution
The case arose from a fatal collision on the Massachusetts Turnpike on July 12, 1990.
At approximately 11:15 p.m., a vehicle operated by Edward Allaire became disabled near the Allston-Brighton toll booths. Allaire and a passenger attempted to push the vehicle toward a toll-gate ramp.
The weather was misty, but the area was illuminated by overhead lights. As Allaire pushed from the left rear of the disabled vehicle, a vehicle driven by John T. Zevitas approached at approximately 45 to 50 miles per hour and struck Allaire and the disabled car. Allaire was killed.
At the scene, Zevitas repeatedly said that he had not seen the vehicle.
Three State troopers described Zevitas as having a strong odor of alcohol, bloodshot and glassy eyes, slurred speech, and difficulty maintaining his balance. Two troopers offered the opinion that he was under the influence.
The Commonwealth charged Zevitas with several offenses, including:
Motor-vehicle homicide while operating under the influence;
Operating under the influence of alcohol; and
Negligent operation of a motor vehicle.
A jury convicted him of those charges.
There Was No Breath-Test Result
The Commonwealth did not introduce a breath-test result at trial. Nor did it introduce direct testimony that Zevitas had refused to take a test.
At the time, however, G.L. c. 90, § 24 required a judge to give a particular instruction whenever no blood-alcohol evidence was presented.
The instruction told jurors, among other things:
That police may offer a breath or blood test after an OUI arrest;
That the driver is not required to submit;
That there may be several reasons why a person would decline testing;
That there may be several reasons why no test was administered; and
That the jury should not speculate about the absence of a test or draw an inference for either side.
The instruction was intended to prevent speculation. The SJC concluded that it was more likely to produce it.
Why Refusal Is “Testimonial” Evidence
A breath sample is physical evidence. Requiring a person to provide physical evidence does not ordinarily violate the privilege against self-incrimination.
But the act of refusing communicates something different.
The prosecution would naturally want jurors to interpret a refusal as the equivalent of saying:
I believe I have consumed enough alcohol that the test will incriminate me.
That inference concerns the defendant’s thoughts and beliefs. The refusal is therefore communicative—or testimonial—in a way that the breath sample itself is not.
The constitutional problem arises from the choice imposed on the driver. The government cannot force a person to choose between:
Providing potentially incriminating physical evidence by taking the test; or
Refusing and having that refusal used as testimonial evidence of guilt at trial.
The SJC had already articulated that principle in an advisory opinion issued two years earlier. In Zevitas, it applied the principle to an actual criminal prosecution.
The Judge’s Instruction Created the Same Constitutional Problem
No witness told the jury that Zevitas had refused testing. Nevertheless, the SJC concluded that the judge’s instruction conveyed the same information by “strong implication.”
Once the judge explained the right to refuse and warned jurors not to speculate about the absence of a test, jurors were likely to conclude that:
Zevitas had been offered a test;
He had refused it; and
The refusal explained why the Commonwealth had no blood-alcohol result.
The instruction placed the fact of refusal before the jury indirectly.
That was enough to violate Article 12.
The constitutional protection could not be avoided merely because the information came from the judge rather than a police officer or prosecutor. Indeed, the Court observed that prejudicial information may carry even greater weight when it comes from the trial judge.
Why the Limiting Instruction Did Not Cure the Problem
The Commonwealth argued that the instruction expressly told jurors not to speculate and not to draw an inference from the absence of a test.
Ordinarily, courts presume that jurors follow limiting instructions. But that principle could not save the convictions in Zevitas.
The problem was the instruction itself.
The judge first provided information from which jurors could infer that Zevitas had refused and then told them not to draw the natural inference arising from that information. The SJC could not fairly conclude that the warning erased the prejudice.
In substance, the instruction asked jurors not to think about the precise subject it had just placed before them.
The Evidence Was Sufficient, but the Convictions Were Still Reversed
The SJC separately determined that the Commonwealth had presented legally sufficient evidence to support the charges. The troopers’ observations, the circumstances of the collision, and the remaining evidence would have permitted a rational jury to convict.
That did not make the constitutional error harmless.
The Court reversed all three convictions and remanded the case for a new trial. The Commonwealth was free to retry Zevitas, but it could not place his refusal before the next jury, either through evidence or an instruction that effectively disclosed it. Full opinion
What Zevitas Means in a Massachusetts OUI Trial
The central rule is straightforward:
The Commonwealth generally may not introduce a driver’s refusal to submit to a breath or blood test as evidence of guilt.
The prosecutor cannot argue that the refusal demonstrates consciousness of guilt. A police officer ordinarily may not tell the jury that the defendant refused. The Commonwealth also may not accomplish indirectly what it cannot do directly by inviting speculation about why no chemical-test result exists.
The protection does not eliminate the separate administrative consequences of refusal. The RMV may still suspend the driver’s license under the implied-consent law.
That distinction is essential:
The refusal may be used in the administrative licensing process.
It ordinarily may not be used to prove guilt in the criminal OUI prosecution.
A refusal can therefore produce a severe license suspension while remaining inadmissible at the criminal trial.
The Rule Remains Good Law
More than 30 years later, Zevitas remains a central Massachusetts authority on refusal evidence.
The 2026 Massachusetts Guide to Evidence continues to cite the case for the rule that evidence of refusal to submit to a blood-alcohol test is inadmissible. It places Zevitas within a broader Article 12 principle: when the government has not obtained a warrant or court order, a person’s refusal to provide physical evidence generally cannot be introduced as evidence of guilt. Massachusetts Guide to Evidence § 511
The SJC extended the same reasoning to field sobriety tests in Commonwealth v. McGrail, 419 Mass. 774 (1995). Evidence that a driver refused to perform those tests is likewise generally inadmissible.
The Larger Principle Behind Zevitas
Zevitas is not based on the theory that Massachusetts drivers have a constitutional right to refuse every request for physical evidence without consequences.
Its reasoning is more precise.
The government may impose administrative consequences for refusing a chemical test. What it generally cannot do is use the refusal to reveal the defendant’s thought process and then ask a criminal jury to treat that thought process as proof of guilt.
The distinction is between the physical evidence the government seeks and the testimonial meaning it assigns to a person’s refusal.
That is why Zevitas remains important. The privilege against self-incrimination would offer little protection if the prosecution could accomplish by implication what the Constitution forbids it from saying directly.
Charged With OUI After Refusing a Breath Test? Call Benzaken, Sheehan & Wood, LLP
A breath-test refusal creates two separate legal problems: an immediate RMV suspension and a criminal OUI prosecution. The refusal may have serious licensing consequences, but it ordinarily cannot be used as evidence that you were under the influence.
Benzaken, Sheehan & Wood, LLP represents people charged with OUI in Brockton and throughout southeastern Massachusetts. We examine the stop, the arrest, field sobriety testing, body-camera footage, breath-testing procedures, refusal paperwork, and the separate grounds for challenging an RMV suspension.
If you refused a breath test or are facing an OUI charge, call Benzaken, Sheehan & Wood, LLP at (508) 897-0001 to schedule a confidential consultation.
This article provides general information about Massachusetts law and is not legal advice. The available defenses and licensing consequences depend on the facts and procedural history of each case.