Right to an Attorney Before Breathalyzer in Massachusetts?
Under the Sixth Amendment and article 12 of the Massachusetts Declaration of Rights, a defendant is supposed to be advised of the right to an attorney before a critical stage of criminal proceedings. In Commonwealth v. Neary-French, the Massachusetts Supreme Judicial Court considered whether the 2003 amendment to M.G.L. chapter 90 section 24, which created a theory whereby a breath test reading .08 or more is an element of the offense, made the decision of whether to take a Breathalyzer a critical stage, such that the defendant needed to be advised of the right to counsel.
The case arose when a woman signaled to the police department that the defendant's car was bumping into another car. An officer approached the defendant and observed she might be operating under the influence. Another officer came to the scene to administer a field sobriety test.
Due to his observations and her performance on the tests, the defendant was arrested. At the police station, she was advised of her Miranda rights and given a statutory rights and consent form, which advised her of her right to make a phone call, her right to a physician, the consequences of a refusal to submit to a chemical test, and other warnings. The defendant initially refused the Breathalyzer but a few minutes later agreed. The test showed her blood alcohol content was greater than .08.
The court had previously held that there was no right to an attorney before a defendant decided to take a Breathalyzer test. The appellate court in this case was asked to look again at the question, since the statute that established what driving under the influence was had been amended. Before the amendment, the law allowed an inference that a defendant was drunk if his blood alcohol content was .08 or greater. The amendment removed this inference, making it a per se violation to operate a car with that blood alcohol content level as well as if the defendant was under the influence of intoxicating liquor.
In this case, the defendant was arrested for operating under the influence and didn't have a chance to talk to an attorney before deciding whether to agree to the Breathalyzer. She moved to suppress the results on the ground that she had a right to an attorney under the Sixth and 14th Amendments, as well as article 12. A judge reported the legal question to the Appeals Court.
The reported question was whether the amendment created a new theory, such that the defendant's decision to take the breath test was a critical stage of the criminal proceedings, necessitating a warning that the defendant had a right to an attorney. The appellate court determined that it did not.
The defendant argued that since the Breathalyzer results could be used as the sole basis for a DUI conviction, the decision would have a significant impact on the strategy chosen, which made it a critical stage. The appellate court explained that under the Sixth Amendment and article 12, criminal defendants have the right to counsel at all critical stages of the prosecution. However, the Court has explained that the right to an attorney doesn't attach until adversary judicial criminal proceedings are initiated.
While taking a Breathalyzer test is an important tactical decision, it is initiated at an evidence-gathering stage before the Sixth Amendment attaches. The court concluded that the rights that were explained to the defendant before she took the test provided sufficient protection against the potential for an unfair result.