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Breathalyzer breath test law enforcement

A handheld breath analyzer is used to estimate blood alcohol content(BAC) from the amount of alcohol detected by a breath test.

A recent decision from the Massachusetts Supreme Judicial Court stated that a driver asked to take a breathalyzer test does not have right to counsel prior to their decision to take or refuse the test.

In Commonwealth v. Neary-French, SJC-12057 the court stated that there is no constitutional right to counsel under the Sixth Amendment or Article 12 of the Massachusetts Declaration of Rights as an individual decides whether to submit to a breathalyzer test as it is not part of the “critical stage” of the prosecution.

Neary-French was arrested for operating under the influence of intoxicating liquor pursuant to G.L. c. 90 §24. The defendant was brought to the station and advised of her rights. She was asked to take a breath test which she initially refused. She argues that she was not given the opportunity to consult with a lawyer prior to her decision to take the breathalzer test.

The defendant claims that “the decision whether or not to submit to a breathalyzer test can have a significant impact on trial strategies and available defenses, rendering the decision a critical stage in the proceedings.”  The defendant also argues that a critical stage occurs when a defendant’s rights could be sacrificed or lost.

The court advises that “the Sixth Amendment and art. 12 provide criminal defendants the right to counsel at all “critical stages” of prosecution. Following the decision of the Supreme Court of the United States in Kirby v. Illinois, 406 U.S. 682, 684 (1972) the right of counsel does not attach until “at or after the initiation of adversary Judicial criminal proceedings – whether by way of formal charge, preliminary hearing, information, or arraignment.” Adversarial proceedings are commenced well after the breathalyzer test is carried out.

The SJC disagreed with Neary-French and concluded there is no right at risk of being sacrificed while deciding whether to submit to a breathalyzer test. “The defendant already consented to the breathalyzer test by virtue of driving within the Commonwealth.” see G. L. c. 90, § 24 (1) (f) (1).

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