Massachusetts SJC Rules No Right to Counsel for Breathalyzer

imagesA reported question pre-trial was taken by the Massachusetts Supreme Judicial Court in the matter of Commonwealth v. Timothea T. Neary-French as to whether the defendant had a right to an attorney prior to submitting to a breathalyzer test.  The Supreme Judicial Court held that there is no such right to an attorney before deciding whether to take a breath test when stopped for Operating Under the Influence of Alcohol, despite the fact that the law permits a permissible inference of intoxication upon a reading of a blood alcohol level of 0.08% or more.

The defendant was stopped by police in Lenox, Massachusetts by a police officer after a woman reported the defendant’s vehicle was bumping into another car. The police stopped the defendant’s car and, according to the officer, suspected that she was operating under the influence of alcohol.  The defendant submitted to field sobriety tests and was eventually arrested.

Later, at the police station, the police advised the defendant of her Miranda rights and booked the defendant. She was then requested to take a breathalyzer test. Although she initially refused, she eventually took the test, which yielded a reading of 0.08%.

In the question reported to the Massachusetts Supreme Judicial Court, the defendant argued that she has a right to an attorney pursuant to the Sixth Amendment of the United States Constitution, as well as Article Twelve of the Massachusetts Declaration of Rights.  She argued that, because the Massachusetts legislature imposed a “per se” violation theory (of operating under the influence if a breathalyzer yields a reading of 0.08% or greater); and where a 0.08% reading can be used as the sole basis for a conviction, a person’s decision whether or not to submit to a breath test has tremendous implications on trial strategy and defense(s), and the decision is therefore a “critical stage in the proceedings.”

The Massachusetts Supreme Judicial Court disagreed…

In a previous case, Commonwealth v. Brazelton, the MA SJC had ruled that the decision whether or not to submit to a breathalyzer was not a critical stage in the criminal process because the other rights afforded to a defendant (the right to a telephone call and the right to be examined by a physician) “adequately protected a defendant’s rights.”

The more practical reason as to why the SJC ruled as it did, I believe, is because they noted the “potential practical problems that a right to counsel at the breathalyzer stage could present, such as the possibility of ‘stale and inaccurate’ results due to a delayed breathalyzer test because counsel is unavailable.” In other words, a person stopped for OUI/DUI who asks to consult with an attorney would inevitable delay the process such that the eventually taking of any breath test would be rendered meaningless.

Despite the court’s previous reasoning in Brazleton, the SJC again revisited this issue…this time expanding its reasoning as to why a person has no right to counsel before submitting to a breathalyzer test…

Under both the Sixth Amendment to the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights, the “right to counsel” attaches upon “the initiation of adversary judicial proceedings.” This means, that there is no right to counsel, in these circumstances, until arraignment.

Notably, the SJC offered some examples pre-arraignment as to when the right to counsel does not attach, such as post-arrest and pre-indictment police station show-ups. However, the SJC omitted the sterling example of a persons’ right to counsel pre-arraignment – the right to an attorney when questioned by police in a custodial interrogation.

The court further acknowledged that the decision whether to submit to a chemical breath test “is an important tactical decision”, but that it “occurs at the evidence gathering stage, before the Sixth Amendment or art. 12 right to counsel attaches”. As such, it is not a critical stage because there is little risk that an attorney’s absence might derogate from his right to a fair trial.

Unfortunately, this decision is one more of a convenience than anything else. By imposing a right to an attorney when deciding whether to take a breath test, a significantly less number of breath tests would be given. In most circumstances, most attorneys would advise against taking them if there is even a small chance of blowing close to 0.08%.  Much like your right to consult with an attorney prior to being questioned by the police, so too should one be able to consult with an attorney prior to submitted to a breathalyzer test.

In practice, almost every single client that I’ve represented has regretted submitted to a breathalyzer.  With the exception of one, every single one of my clients have blown a 0.08% or greater.  Those that have submitted to a breath test, have a weaker case at trial (with this additional evidence against them) than had they not taken the test.

As it stands, the decision to take a breath test must be made at the time of the stop.  In so deciding, the person should weigh whether or not he/she can “pass” the test; as well the inevitable license revocation implications with refusing to take the test.

Contact Boston OUI/DUI Lawyer Lefteris K. Travayiakis or call 617-325-9500 for a consultation.

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