Pursuant to the Sixth and Fourteenth Amendments to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights, a criminal defendant has the right to counsel at “critical stages” of the prosecution. The Massachusetts Supreme Judicial Court has held that a defendant does not have a right to counsel before deciding whether to take a breathalyzer test. Those cases, however, were decided before a 2003 amendment that changed the Massachusetts DUI statute, G.L. c. 90, § 24. Before the amendment, there was a permissible inference that a person was under the influence with a blood alcohol level at or above .08. The amendment removed the permissible inference and made it a violation for a person to operate a vehicle with a blood alcohol level at or above .08.
In Commonwealth v. Neary-French, the defendant moved to suppress the results of her breathalyzer test, arguing she had been denied her right to counsel before deciding whether to take the test. The trial court reported to the Appeals Court the question of whether the amendment that created the per se violation made the decision of whether to take a breathalyzer test a critical stage of the proceedings, thus triggering the right to counsel. The Supreme Judicial Court transferred the case to itself on its own motion.
This case arose from an incident beginning at around 1:15 in the afternoon. The police chief was on patrol when he was signaled and told that the defendant’s vehicle was “bumping into” another vehicle. He called for assistance. When the other officer arrived, he administered field sobriety tests and arrested the defendant, based on those tests and his observations.