Commonwealth v. Botelho

The defendant, Ronald Botelho, Jr., appeals from his conviction of operating while under the influence of alcohol (OUI), second offense. See G. L. c. 90, § 24(l)(a)(l). At trial the sole issue for the jury was whether the defendant was intoxicated, or whether his conduct and demeanor were the product of a hearing impairment, compounded by the force of a collision. The defendant contends that the trial judge’s inadvertent failure to heed his request to instruct the jury regarding his decision not to testify, coupled with the prosecutor’s closing argument, created a substantial risk of a…