Massachusetts Revisits Issue of Pre-Breathalyzer Right to Counsel – Commonwealth v. Neary-French

Clearly, the United States Constitution guarantees the criminally accused the right to counsel. However, exactly when, and under which circumstances, that right first attaches is sometimes a point of contention.

Recently, Massachusetts’ highest court was called upon to revisit this issue as it concerned a defendant’s right to counsel regarding whether or not to submit to a breathalyzer test after being arrested for drunk driving.

In a previous case, the court had held that no such right exists, but the defendant pointed to a change in Massachusetts statutory law as a reason to change the common law as to this issue.

Facts of the Case

In Commonwealth v. Neary-French, the defendant was a woman who was pulled over after a witness told police that the defendant had bumped into another car with her vehicle as she was driving. The defendant was administered a field sobriety test, after which she was arrested for operating while under the influence (OUI).

The defendant was taken to the police station, advised of her Miranda rights, and asked to take a breathalyzer test. At first, she refused. She later consented to the test, which showed that she had a blood alcohol level (BAC) above .08 (the legal limit for OUI in Massachusetts). Prior to trial, the defendant filed a motion to suppress the results of the breathalyzer test on the grounds that her rights under the Sixth and Fourteenth Amendments were violated, since she was not allowed to consult with an attorney before deciding whether to submit to the test.

The district court judge reported a question of law to the appeal court, and the Massachusetts Supreme Court transferred the question on its own motion.

Decision of the Court

Although the defendant argued that she was entitled to speak with counsel prior to the breathalyzer test because such a test occurred at a “critical stage” of the prosecution and could be the sole basis for a conviction against her, the court held that the right to counsel did not attach at that “evidence-gathering stage” of the case. In so holding, the court held that, by choosing to drive within the Commonwealth, the defendant had already consented to a breathalyzer test.

To support its reasoning, the court revisited its 1989 decision in Commonwealth v. Brazelton, noting that certain 2003 amendments to Mass. Gen. Laws ch. 90, § 24 did not render the holding in that case inapplicable to the case at bar. (The amendments eliminated the permissible inference of OUI based on a BAC of .08 or greater and instead made it a violation per se.)

If You Are Facing OUI in the Cape Cod Area

A conviction for OUI can have serious consequences, including jail time, fines, community service, increased insurance costs, lost time from work, and difficulty finding employment in certain occupations in the future. To talk to a skilled Cape Cod drunk driving attorney, call the Law Offices of John C. Manoog, III, at (888) 262-6664 and ask for a confidential case evaluation. We represent clients in Hyannis, Plymouth, and elsewhere in Massachusetts. Nos falamos Portugues.

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