No Right to Counsel Before Breath Test in MA

     BOSTON (CN) – Suspected drunk drivers in Massachusetts do not have a right to consult with an attorney before taking a breathalyzer test, the state’s highest court ruled.
     Timothea T. Neary-French unsuccessfully challenged the results of her breathalyzer test after being arrested in 2012 for operating under the influence, or OUI, in Lenox, Mass. A third party had drawn police attention to Neary-French after she was reportedly “bumping into” another car.
     The Massachusetts Supreme Judicial Court previously ruled that there is no right to counsel prior to a breathalyzer test, but that was in 1989.
     Neary-French was arrested for operating while under the influence of liquor and was given a breathalyzer without the opportunity to consult with a lawyer. She blew above 0.08, but later moved to suppress the breathalyzer results.
     The Massachusetts Legislature amended its law for drunk driving in 2003. In 1989, a 0.08 blood-alcohol level was sufficient for the police officer to infer that the driver was operating under the influence. The 2003 amendment to the law removed the permissible inference, specifically making a 0.08 blood-alcohol level enough for an OUI charge.
     The state supreme court previously held that a breathalyzer test was not a critical stage in criminal proceedings, and therefore there was no assumed right to counsel prior to taking the test.
     Neary-French argued that the breathalyzer test had become a critical stage with the 2003 update to the state’s OUI law, but the Massachusetts high court disagreed Monday.
     Despite the law’s amendment, the court reaffirmed its opinion that a person only has a right to counsel once the state has officially begun criminal proceedings.
     “Because the decision whether to submit to a breathalyzer test takes place before the initiation of formal judicial proceedings, we conclude that there is no right to counsel at the breathalyzer stage under [article 12],” Justice Francis Spina wrote. “The term ‘critical stage’ is a term of art and only refers to actions and events postindictment or arraignment. The decision whether to submit to a breathalyzer is an important decision, but it is not a critical stage because the decision occurs before indictment and arraignment.”
     The Massachusetts Supreme Judicial Court further noted that under state law, a driver automatically consents to a breathalyzer test when choosing to drive within the Commonwealth.

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