No Right to Counsel for Massachusetts Defendant While Deciding Whether to Take a Breathalyzer Test

Pursuant to the Sixth and Fourteenth Amendments to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights, a criminal defendant has the right to counsel at “critical stages” of the prosecution. The Massachusetts Supreme Judicial Court has held that a defendant does not have a right to counsel before deciding whether to take a breathalyzer test. Those cases, however, were decided before a 2003 amendment that changed the Massachusetts DUI statute, G.L. c. 90, § 24. Before the amendment, there was a permissible inference that a person was under the influence with a blood alcohol level at or above .08. The amendment removed the permissible inference and made it a violation for a person to operate a vehicle with a blood alcohol level at or above .08.

In Commonwealth v. Neary-French, the defendant moved to suppress the results of her breathalyzer test, arguing she had been denied her right to counsel before deciding whether to take the test. The trial court reported to the Appeals Court the question of whether the amendment that created the per se violation made the decision of whether to take a breathalyzer test a critical stage of the proceedings, thus triggering the right to counsel. The Supreme Judicial Court transferred the case to itself on its own motion.

This case arose from an incident beginning at around 1:15 in the afternoon. The police chief was on patrol when he was signaled and told that the defendant’s vehicle was “bumping into” another vehicle. He called for assistance. When the other officer arrived, he administered field sobriety tests and arrested the defendant, based on those tests and his observations.

The defendant was taken to the police station and advised of her Miranda rights. She was also given the “statutory rights and consent” form, which described her rights to a physician and to make a phone call. It also included a request to submit to a chemical test. The officers informed her of her right to make a phone call and asked her to submit to a breathalyzer. She initially refused but agreed after a few minutes. The test was performed after the person administering the test observed her for at least 15 minutes as required by law. The test showed a blood alcohol level greater than .08.

The defendant argued that the decision of whether to submit to a breathalyzer was a critical stage because there now exists a per se violation under the statute. Since the results can now be used as the only basis, other than evidence of driving the vehicle on a public way, for a conviction of DUI, the decision whether to take the test is a critical stage in the proceedings because of its impact on potential defenses and trial strategy.

Under the previous version of the statute, the Supreme Judicial Court had found that the right to a phone call within an hour of arriving at the police station and the right to be examined by a doctor provided adequate protection of a defendant’s rights. The Court also noted that a right to counsel could delay the test, resulting in “stale and inaccurate results.”

The U.S. Supreme Court has held that the right to counsel is not triggered until “at or after the initiation of adversary judicial criminal proceedings. . .” The Supreme Judicial Court found that the breathalyzer test is administered after arrest but before adversary judicial proceedings are initiated. It held that a defendant does not have a right to counsel under the Sixth Amendment before deciding whether to take a breathalyzer test.

Previous case law has also held that the right to counsel under Article 12 does not attach until judicial proceedings begin. Thus, there is no right to counsel under Article 12 before deciding whether to submit to the breathalyzer.

Although it is an important decision, the Supreme Judicial Court noted that it is part of the “evidence gathering stage.” An event is only a “critical stage” if it occurs after the indictment or arraignment. The decision of whether to take a breathalyzer test happens before the indictment or arraignment.

The Supreme Judicial Court noted that most other states have also found that the Sixth Amendment right to counsel does not attach at the time the defendant is deciding whether to take a breathalyzer. Most of the states that have found that a defendant has the right to counsel before making the decision to take the test have based their findings on state law.

Finding the right to counsel under either the Sixth and Fourteenth Amendments or Article 12 does not attach at the time the defendant is deciding whether to take a breathalyzer test, the Supreme Judicial Court remanded the case to the trial court.

If you are facing charges of driving under the influence, a Massachusetts DUI defense attorney can help you. Call the Law Offices of Richard Mucci at (781) 729-3999 to discuss your case.