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.

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.

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. 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.

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