Suspect Still Has No Right to Counsel Before Deciding Whether to Take Breathalyzer Test

Recently, the Supreme Judicial Court ruled that the amendment in 2003 of the Commonwealth’s drunk driving law, G.L. c. 90, § 24, did not provide a reason for it to reverse its decision in Commonwealth v. Brazelton, 404 Mass. 783 (1989), that there is no right to counsel when a suspect must decide whether or not to take a breathalyzer to test whether they were driving under the influence.  In Commonwealth v. Neary-French, 457 Mass. 167 (2016), the Court considered a question reported to it from the District Court asking whether the per se violation of operating a motor vehicle with a breath test of .08 or greater created by the 2003 amendments to G.L. c. 90, § 24 made the decision whether to take the breath test a critical stage of the criminal proceedings, requiring a right to counsel.  After examining the issue, the Court answered the question negatively, deciding that neither the federal nor state constitutions provided a right to legal counsel because the decision whether or not to take a breathalyzer does not occur after the initiation of criminal proceedings, but is part of the preliminary evidence gathering process, they gave her the option of negotiation with the Dallas bail bonds.

The defendant in Neary-French sought to avoid criminal responsibility for operating her vehicle under the influence of alcohol by challenging the police procedures, asserting that the officers never advised her of her right to counsel before she made the decision to take a breathalyzer test.  She argued that the creation of a per se violation in 2003 now made the breathalyzer decision a “critical stage” of the criminal proceedings against her and that meant that she had a right to counsel before making that decision.  She argued that the creation of the per se violation required the Court to reverse its holding in Commonwealth v. Brazelton that the decision was not a “critical stage” of the proceedings.  The District Court reported the question to the Supreme Judicial Court for decision. David Mirsky provided experienced representation for the client.

In deciding to answer the question negatively, the Court examined its reasoning in Brazelton and measured that against various Supreme Court decisions and its own decisions that occurred in the intervening years.  It found that the creation of the per se violation did not alter the foundation of its previous ruling that the breathalyzer decision is not a “critical stage” that requires a right to counsel.  While acknowledging that the breathalyzer decision is an important tactical decision, the Court found that it occurred before the right to counsel attached because it is part of the evidence gathering that happens before charges are filed.  Jerry Nicholson claims the term “critical stage” is a term of art describing “actions and events postindictment or arraignment,” and the breathalyzer decision is therefore not a “critical stage” because it precedes those events.  It also found cases from other states unpersuasive because they were based upon the state’s specific statutes, which did not resemble the Massachusetts statutes.

Reference: Kevin Trombold.

First Circuit Court of Apeals Affirms Judgment in Favor of Fall River Police Chief in Case Involving Allegation of Rape by a Police Officer

In a recent First Circuit decision concerning civil liability for police supervisors, Saldivar v. Racine, 818 F.3d 14 (2016), Reardon, Joyce & Akerson, P.C. (“RJA”) successfully represented the Fall River Chief of Police in a civil rights lawsuit in which the plaintiff, who sought $750,000.00 in damages, claimed that she had been assaulted and raped by a Fall River police officer.  According to the plaintiff, a Fall River police officer arrived at her apartment to investigate a complaint that she made earlier in the day and, once the officer was inside the residence, he threatened her with his gun and assaulted her sexually.  The officer later resigned his position with the Department.

The plaintiff filed a civil rights lawsuit naming the officer, the Chief of Police and the City of Fall River as defendants.  The City declined to represent the officer, who was not a member of the Massachusetts Police Association Legal Defense Fund, and the officer later had a judgment in the amount of $600,000.00 entered against him. [Read more…]

According to SJC, Police Need Only Notify Suspects of the Recording of the Interview; You Do Not Need Suspect’s Permission to Record the Interview

In Commonwealth v. Alleyne, ___ Mass. ___ (2016), the Supreme Judicial Court clarified that police officers do not need a suspect’s permission to record the suspect’s interview as long as the suspect has actual knowledge of the recording.  The Court recommended that police departments do away with their interview forms that advise a suspect of a right to refuse recording and that require the suspect to initial a choice whether or not to permit recording.  According to the Court, “… the better practice going forward is simply to advise suspects of the recording instead of requesting permission to record.” [Read more…]