Commonwealth v. Downs

Found guilty by a District Court jury on a complaint charging him with operating a motor vehicle while *196under the influence of intoxicating beverages, as well as by the trial judge on a second-offense complaint, the defendant appeals and claims that the trial judge’s jury instruction concerning the absence of breathalyzer evidence violated his privilege against self-incrimination contained in art. 12 of the Declaration of Rights of the Massachusetts Constitution. We affirm the convictions.

1. Background. On September 6, 1998, at about 3:25 a.m., State Trooper Wayne Gerhardt was on patrol and…