Commonwealth v. Neary-FrenchAnnotate this Case
Defendant was arrested for operating while under the influence of intoxicating liquor. Defendant was not given an opportunity to consult with counsel before being required to decide whether to submit to a breathalyzer test. Defendant moved to suppress the results of the breathalyzer test, arguing that she had a right to counsel before deciding whether to submit to the breathalyzer test. After an evidentiary hearing, the district court reported a question of law asking whether the 2003 amendment to Mass. Gen. Laws ch. 90, 24, the statute establishing the offense of driving while under the influence of intoxicating liquor, now makes the decision by a defendant whether or not to take a breath test is a critical stage of the criminal proceedings requiring that the defendant be advised of his or her right to counsel prior to making that decision. The Supreme Judicial Court answered the reported question in the negative, holding that there is no right to counsel under the Sixth Amendment to the United States Constitution or article 12 of the Massachusetts Declaration of Rights before a defendant decides whether to submit to a breathalyzer test.