Do I Have the Right to Consult an Attorney Before Taking the Breathalyzer in Massachusetts?

In an important decision that will impact the thousands of people arrested for drunk driving in Massachusetts every year, the Supreme Judicial Court today ruled a defendant has no constitutional right to consult an attorney before deciding whether to take the Breathalyzer test.  The name of the case is Commonwealth v. Neary-French.

In November of 2012, Lenox police officers came upon the defendant, who was reportedly “bumping into” another vehicle with her car.  The police suspected the defendant had been drinking and administered a series of field sobriety tests, which the defendant failed.  She was arrested and brought to the police station.  The cops requested the defendant submit to Breathalyzer analysis.  After some initial reluctance, the defendant blew into the Breathalyzer machine and registered higher than .08, which is the maximum blood alcohol content allowable under Massachusetts law.  She was charged with operating under the influence of alcohol.

The defendant filed a motion to suppress the Breathalyzer reading, arguing that she was constitutionally entitled to consult with a lawyer before deciding whether to take the Breathalyzer.  In a 1989 case, the Supreme Judicial Court ruled that individuals under arrest for OUI are not entitled to the advice of counsel when deciding whether to take the Breathalyzer.  However, the defendant here said the previous decision should be reversed in light of a 2003 change to Massachusetts law that created a separate criminal offense for driving a car with a blood alcohol content of greater than .08 (before 2003, the Breathalyzer reading was evidence of intoxication but a reading of .08 or above was not, by itself, a crime).  The Court rejected the defendant’s argument and affirmed the principle that people under arrest for OUI in Massachusetts do not have the constitutional right to counsel before taking the Breathalyzer.

The federal and state constitutions guarantee criminal defendants the right to be represented by counsel at all “critical stages” of the prosecution against them.  The question is whether a police officer’s request to submit to Breathalyzer analysis constitutes a “critical stage.”  The United States Supreme Court has ruled defendants are entitled to counsel when they have been formally charged with a crime, during preliminary hearings, following the return of an indictment, and at arraignment.  Criminal suspects are also entitled to be represented by attorneys when they are in the custody of the police and being interrogated by officers.  In the case of Breathalyzer tests, the SJC concluded they are initiated prior to the formal adversary judicial proceedings against defendants.  While acknowledging the tactical importance of a defendant’s decision to take the Breathalyzer, the Court pointed out that only three states in the country have concluded the right to counsel attaches to Breathalyzer decisions.  The Court also recognized the practical problems that would exist if an OUI suspect had the right to counsel regarding a Breathalyzer decision.  If a suspect is arrested at midnight but is unable to reach an attorney until 8:00 a.m., a Breathalyzer test will have become useless because it will be impossible to determine what the suspect’s blood alcohol content had been eight hours earlier.

The most common question a criminal defense attorney receives is whether it’s smart to take the Breathalyzer if under arrest for OUI.  There is no easy answer.  If the arrestee is sure the Breathalyzer reading will be lower than .08, then it makes sense to take the test.  However, there are a lot of factors that determine how many drinks it will take for an individual to arrive at a .08 blood alcohol content.  Gender, weight, the rate of consumption, the amount of food in the system, and the ingestion of medication will all impact how quickly somebody becomes under the influence of alcohol.  Therefore, people under arrest often do not know whether they are over or under the legal limit.  In Massachusetts, there are laws that impose significant administrative penalties against people who refuse to take the Breathalyzer.  For example, someone who has no record and refuses to take the test will receive an automatic six-month license suspension (whereas someone who takes and fails the test will receive only a 30-day administrative license suspension).  However, in Massachusetts, a jury is not allowed to hear that a suspect refused to take the Breathalyzer.  So the person who refused the test will receive a much harsher initial license suspension, but will be in a much better position to win the case at trial.