Can an officer testify that he thought you were drunk during an OUI trial, Massachusetts SJC addresses the issue in recent case

The Massachusetts Supreme Judicial Court recently issued a ruling limiting the testimony of police officers during an OUI trial. The case of Commonwealth v. Canty, decided on November 6, 2013, involved whether a police officer’s testimony violated the rule of evidence that a witness cannot render an opinion on the ultimate issue that the jury must decide. As a this decision clarifies how an officer may testify at trial.

In the Canty case, the officer testified as follows:

Did you form an opinion as to the defendant’s sobriety?

Yes I did.

I believe that his ability to drive was diminished.

Do you have an opinion as to what may have diminished his capacity
I believe it was the consumption of alcohol

Did you form an opinion as to the defendant’s sobriety
In my opinion he was probable impaired.

The SJC found that the first portion of the testimony that the defendant’s capacity to drive was diminished encroached on the function of the jury while the testimony he was probable impaired did not.

Background of the Canty Case

Canty was pulled over after a Leicester police officer observed him driving too close the curb, and drifting across the road. After the officer pursued Canty for about thirty to forty seconds, Mr. Canty finally pulled over to the side of the road. When the officer approached Canty he asked for his license and registration, the officer detected an odor of alcohol and noticed that Canty’s eyes were bloodshot. Canty eventually admitted he had consumed alcohol two hours earlier. Canty was arrested, the officers conducted an inventory search of the car and discovered a half-empty bottle of brandy on the floor of the front passenger side.

Before his trial, Canty’s Massachusetts OUI Attorney asked the trial judge to exclude any opinion of the arresting officer regarding Canty’s intoxication or impairment, on the grounds that this testimony would undermine the jury’s function to determine Canty’s guilt. The trial judge denied the motion.

The SJC detailed the difference between lay and expert witness testimony. The court stressed that a lay witness can testify that someone appears to be under the influence of alcohol, but cannot testify that a defendant had a diminished ability to drive as that is the issue for the jury. The Court found the testimony problematic because the testimony came from a police officer because the jury may too readily have agreed with the opinion of the officer and not conducted its own independent analysis. To Listen to the oral arguments before the SJC click on this link from Suffolk Law School.

As a Massachusetts OUI Lawyer the issue of the wording of the officer’s opinion comes up frequently at trial. As a strategy matter, a defense lawyer must decide whether to make an issue of the testimony. For example, to preserve this issue for appeal, an objection is required, which would likely result in the prosecutor potentially rephrasing the question and spending more time on it, giving it possibly more importance. In Court, time is the measure of importance so an OUI Attorney always has two decisions to make:

  1. Is there an error in the testimony,
  2. Is it important enough to take court time with and draw the attention of the court and the jury to the issue.

In this case, though the Court found an error, the Court did not find it significant enough to overturn the defendant’s OUI conviction. This decision clarifies an area of evidence law that was unclear and gives clear guidance.

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