The legal and factual backgrounds are as follows. In 1989, the SJC issued a decision in Commonwealth v. Brazelton, 404 Mass. 783, 785 (1989) dealing with the same issues raised by Neary-French in this case. In Brazelton, the SJC ruled that the defendant had no right to counsel before deciding whether to take a breathalyzer test. Subsequently, in 2003, the Legislature amended the OUI statute (G. L. c. 90, §24). The amendment makes it “a violation to operate a motor vehicle not only under the influence of intoxicating liquor, but also with a blood alcohol level of .08 or more.” This rule is known as a ‘per se’ violation.” In other words, even if the defendant is driving perfectly, he or she may still be guilty of operating under the influence if his or her blood alcohol level is .08 or more.
Neary-French was arrested for operating while under the influence of intoxicating liquor and was not given an opportunity to consult with counsel before having to decide whether to submit to a breathalyzer test. The defendant filed a motion to suppress the results of the breathalyzer test [which indicated that her blood alcohol level was greater than .08], arguing that she had a [constitutional] right to counsel … before deciding whether to submit to [such] a … test.” After an evidentiary hearing on the motion, the judge reported the following question of law to the SJC: “‘Whether the 2003 amendment to G. L. c.90, §24, which created a new “.08 or greater” theory by which to prove an [operating while under the influence of intoxicating liquor] offense, where a breath test reading of .08 or greater is an element of the offense, now makes the decision by a defendant whether or not to take the breath test itself a critical stage of the criminal proceedings requiring that the defendant be advised of their right to counsel prior to making that decision, pursuant to art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments of the United States Constitution.’”
Answering the reported question in the negative, the SJC “conclude[d] that, despite the creation of a ‘per se’ violation theory, there is no constitutional right to counsel … when deciding whether to submit to a breathalyzer test.” Citing decisions of the United States Supreme Court, the SJC stated, “It is well settled that the right to counsel under the Sixth Amendment does not attach until the occurrence of critical stages at or after the initiation of adversary judicial proceedings, whether that be by formal charge, preliminary hearing, indictment, information, or arraignment…. The breathalyzer test is administered postarrest but before the initiation of adversary judicial proceedings. Therefore, under the Sixth Amendment, there is no right to counsel at the time a defendant is deciding whether to submit to a breathalyzer test. Similarly,” opined the SJC, “under art. 12, … the right to counsel ‘attaches at the time judicial proceedings are commenced.’ Commonwealth v. Anderson, 448 Mass. 548, 553-554 (2007).… 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 art. 12.”
An OUI charge has significant and far-reaching potential consequences for a defendant – a continuance without a finding or a conviction results in the loss of license, which can in turn have a major impact on a person’s ability to obtain employment and/or get to work. Breathalyzer evidence often plays a large role in a defendant’s decision to proceed to trial and it is unfortunate that the SJC refused to extend constitutional protections for defendants faced with the decision of participating in a breath test. In light of the court’s decision, it is that much more important for anyone facing OUI charges to have excellent representation. Attorney Daniel Cappetta has successfully represented many clients charged with OUI offenses and always gets the best results possible. If you or a loved on is facing such charges, call him today for a free consultation.