SJC decision on right to counsel prior to a breath test could impact admissibility of breath test results

The Massachusetts Supreme Judicial Court will hear the case of Neary-French v. Massachusetts over whether a defendant should be advised of his or her right to counsel prior to making the decision of whether or not to submit to a breathalyzer test. The 2003 amendment to G.L.c. 90, §24 created the “.08 or greater” per se theory by which an OUI offense can be proven. The SJC will have to decide whether or not the decision to take a breath test is a critical stage of the criminal proceeding, as defendants are entitled to be advised of their right to counsel prior to making any decisions in the critical stages of a criminal proceeding.  Recently, Bob McGovern of the Boston Herald wrote an Article about this case and how it has prosecutors concerned.

In Massachusetts, in order to support a prima facie case for an OUI, the prosecution must prove three elements: (1) that the defendant was in physical operation of the vehicle; (2) that the defendant did so on a public way or place to which the public has a right of access; and (3) had a measurable blood alcohol content percentage of .08 or greater, or was impaired by the influence of intoxicating liquor. Before the 2003 amendment, the jury could draw a permissible inference that the defendant was under the influence at the time of the offense if the BAC was .08 or higher. The 2003 amendment adopted the per se theory that a defendant with a BAC level of .08 or higher is now considered to be legally intoxicated under the law, regardless of the level of impairment.

A critical stage is one in which the defendant’s rights could be sacrificed or lost. Before the 2003 amendment, the right to counsel did not attach because the Court did not consider the test a ‘critical stage’ in the criminal process and the assistance of counsel would create an undue delay in the administration of the test. There were reasonable safeguards in place to protect the defendant’s right. The 2003 amendment removed defendant’s safeguards and caused the breathalyzer to become a critical stage in the criminal process because the outcome of the test could possibly be the sole basis of a conviction.

An affirmative obligation should exist for the defendant to be informed of his or her right to counsel before submitting to a breathalyzer. The right to counsel is a fundamental constitutional right and defendants should be informed of that right before every critical stage in a criminal proceeding. Breathalyzer test results can be used as direct evidence against the defendant, making the decision of whether or not to submit to the test a critical part of proceedings. It is important that the defendant’s right to counsel be affirmed before this potentially right denying stage.

Want to learn more about Massachusetts OUI laws, read my Blog about whether field sobriety tests are admissible for an OUI marijuana case.

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For additional reading on this issue, David Liton of the Attleboro Sun wrote an informative article on this case.