56 N.E.3d 159
Mass.2016Background
- Defendant arrested for suspected OUI after failing field sobriety tests in Lenox on Nov. 28, 2012; taken to station, Miranda warnings given, and presented with a statutory rights and consent form.
- Police asked defendant to submit to a breathalyzer around 1:51 p.m.; she initially refused, then consented after 3–4 minutes and completed the observed test at ~2:18 p.m.; result > .08.
- Defendant moved to suppress the breath test results, arguing she had a right to consult counsel before deciding whether to take the test under the Sixth Amendment and art. 12 of the Massachusetts Declaration of Rights.
- A District Court judge reported the legal question under Mass. R. Crim. P. 34; the Appeals Court received it and the SJC transferred the matter to decide whether the 2003 amendment creating a per se .08 offense makes the decision to take a breath test a "critical stage."
- The SJC reviewed whether the statutory creation of a per se offense transforms the pre‑charging decision to take a breath test into a stage at which the right to counsel attaches.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether decision to submit to breath test is a "critical stage" triggering Sixth Amendment/art.12 right to counsel | Breath test results can alone convict under the 2003 per se .08 theory, so deciding to test is crucial to trial strategy and thus a critical stage | The decision occurs postarrest but pre‑adversary proceedings; right to counsel attaches only at or after initiation of formal proceedings, so no right applies at breath test stage | No — decision to take breath test is not a critical stage; no right to counsel under Sixth Amendment or art. 12 before formal proceedings |
Key Cases Cited
- Commonwealth v. Brazelton, 404 Mass. 783 (Mass. 1989) (breath test decision not a critical stage pre‑2003 amendment)
- Commonwealth v. Colturi, 448 Mass. 809 (Mass. 2007) (explaining per se .08 statutory theory)
- Kirby v. Illinois, 406 U.S. 682 (U.S. 1972) (Sixth Amendment right to counsel attaches at initiation of adversary judicial proceedings)
- United States v. Wade, 388 U.S. 218 (U.S. 1967) (definition of "critical stages" and counsel at post‑indictment lineups)
- Montejo v. Louisiana, 556 U.S. 778 (U.S. 2009) (once adversary process begins, right to counsel applies at all critical stages)
- Nyflot v. Minnesota Comm'r of Pub. Safety, 474 U.S. 1027 (U.S. 1985) (dismissal for want of substantial federal question; lower courts had held no Sixth Amendment right pre‑test)