Can I Call My Attorney Before I Take A Breathalyzer?

Prior to 2003, Massachusetts drunk driving laws held that a driver suspected of drunk driving did not have a right to consult with an attorney prior to taking a breathalyzer test. In 2003, the legislature amended Mass. Gen. Laws ch. 90, section 24 to include a “.08 or greater” theory, where a breath test reading of .08 or greater was then included as an element of the offense. The question answered in Commonwealth v. Neary-French, SJC-12057, slip op. (August 15, 2016), was whether the amendment made the decision by a driver of whether or not to take the breath test a “critical stage of the criminal proceeding,” requiring a right to consult with an attorney?

Following an arrest based on failed field sobriety tests, the driver in Neary-French was taken to the police station where she was presented with a “statutory rights and consent” form that described her rights to a physician, right to make a phone call, etc. Initially the driver refused to take the breathalyzer test, but subsequently consented minutes later.

In 1989, the SJC previously ruled that there was no right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution or art. 12 of the Massachusetts Declaration of Rights before a defendant decides whether to take a breathalyzer test. See Commonwealth v. Brazelton, 404 Mass. 783, 785. Here, the driver argued that the amendment to the statute, including a .08 or greater reading made the decision of whether or not to consent to the breath test a “critical stage” because of the significant impact it could have on trial strategies and available defenses.

However, the Court reiterated that its Brazelton decision recognized potential practical problems that a right to counsel at the breath test stage could present such as the possibility of “stale and inaccurate” results due to delay because of counsel unavailability. Id. Further, the Court pointed out that the United States Supreme Court has identified “critical stages” where right to counsel attaches to include post-indictment lineups, post-indictment interrogations, plea hearings and arraignments. A breath test is administered after arrest, but before the initiation of adversary judicial proceedings. Thus, the Court reaffirmed in this case, there is no right to consult with an attorney before deciding whether to take the breath test.

Lest you think it unfair that someone has to decide whether to take a breath test without talking to an attorney, remember that the defendant has a right to a phone call – a call that can be used to contact an attorney, as well as having a statutory rights and consent form presented and explained to them, containing the consequences of refusing a breathalyzer test.

Still, this case serves as a continuing reminder that if you choose to drive on the streets of Massachusetts, you’ve already consented to taking a breathalyzer. If you have questions about how these or other legal developments affect you, call the attorneys at Hutchins Law, P.C.

The purpose of this article is to inform our clients of developments in the law and to provide information of general interest. It is not intended to constitute legal advice or to assume a client relationship. The content of this article could be considered advertising under the rules of the Massachusetts Supreme Judicial Court. Copyright © 2012 Hutchins Law, P.C. All Rights Reserved.