Deciding To Take Or Refuse a Breathalyzer Test Hasn’t Gotten Any Easier
Deciding whether to take a breathalyzer test, in Massachusetts, hasn’t gotten any easier. On August 15, 2016 the Massachusetts Supreme Judicial Court decided the case of Commonwealth vs. Neary-French, and reaffirmed there is no right to counsel under the Sixth Amendment of the US Constitution or art. 12 of the Massachusetts Declaration of Rights when an individual is deciding whether to submit to a Breathalyzer test. In Neary-French the defendant argued that because breathalyzer results can be used as the sole basis (with proof of operation on a public way) for a conviction of operating while under the influence of alcohol, the decision whether to submit to a Breathalyzer test can have a significant impact on trial strategies and available defenses, making the decision a “critical stage” in a legal the proceedings.
In the 1989 case of Commonwealth vs. Brazelton, the Court concluded the decision whether to submit to a Breathalyzer test was not a “critical stage” in the criminal process and explained the statutory right of access to a telephone within one hour upon arrival at the police station and the statutory right to be examined by a physician of the defendant’s own choosing adequately protect a defendant’s rights. But the rules concerning the admission of breath test results at trial had changed since then. The issue on this appeal was whether 2003 rules changes, making readings above .08 conclusive per se evidence of impairment,without further proof, made a consultation with a lawyer constitutionally required. ”
Three State courts have held that a defendant possesses a State constitutional right to counsel when deciding whether to submit to a Breathalyzer test. See, Sites v. Maryland, 300 Md. 702, 717-718 (1984); Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 832 (Minn. 1991); State v. Spencer, 305 Or. 59, 74-75 (1988). However, Massachusetts has decided to align itself with the majority of State courts have held that a defendant’s Sixth Amendment right to counsel does not attach.
