Com. v. Brazelton

• Decision Date: 01 May 1989
• Citation: 404 Mass. 783,537 N.E.2d 142
• Parties: COMMONWEALTH v. Roy D. BRAZELTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 142

537 N.E.2d 142

404 Mass. 783

COMMONWEALTH v.Roy D. BRAZELTON.

Supreme Judicial Court of Massachusetts Worcester.

Argued April 4, 1989.

Decided May 1, 1989.

Katherine E. McMahon, Asst. Dist. Atty., for Com.

Herbert F. Travers, III(Ellen M. O'Connor with him), for defendant.

Before WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

NOLAN, Justice.

The sole issue in this appeal of the Commonwealth from the allowance of a motion to dismiss is whether, under the United States Constitution or the Massachusetts Constitution, an arrested person has a due process right to counsel prior to deciding whether to take a breathalyzer test.Admittedly, there is no statutory right.We hold that there is no such constitutional right.

The defendant was arrested on June 13, 1987, for operating under the influence of intoxicating liquor and taken to the police station.From the judge's findings of fact in connection with the defendant's motion to dismiss, we learn that after the defendant was booked, he waS advised of his Miranda rights and of his right to a breathalyzer test and to an examination "by a doctor of his own choosing at his own expense."He was told the consequence of his refusal to take the breathalyzer.He asked the officer for permission to telephone his attorney before deciding whether to take the breathalyzer test.The officer told him to make his decision about taking the test "and then you may make a phone call."The defendant refused the test and he was then allowed to use the telephone on which he talked to a friend or a family member.The judge found that the defendant's request to use the telephone was made in good faith and that his use of it would not have caused an unreasonable delay in the administration of the breathalyzer test.Finally, the judge found that the defendant intended to telephone a named private attorney.

There is no case in Massachusetts on this issue.Courts in other jurisdictions have gone in different directions.Some courts have decided that a right to counsel before electing to take a breathalyzer or blood alcohol content test exists as a matter of State statutory law.SeeCopelin v. Alaska, 659 P.2d 1206, 1211-1212(Alaska1983), cert. denied, 469 U.S. 1017, 105 S.Ct. 430, 83 L.Ed.2d 357(1984)(breathalyzer);Kuntz v. State Highway Comm'r, 405 N.W.2d 285, 288(N.D.1987)(blood alcohol content).One jurisdiction has found a State constitutional right to counsel in the circumstances.SeeState v. Spencer, 305 Or. 59, 74, 750 P.2d 147(1988)(breathalyzer).Still other courts have held that the Sixth and Fourteenth Amendments to the United States Constitution guarantee one the right to counsel before deciding to submit to a breathalyzer or blood alcohol content test.SeeHeles v. South Dakota, 530 F.Supp. 646, 652(D.S.D.1982), vacated on other grounds, 682 F.2d 201(8th Cir.1982)(breathalyzer);People v. Gursey, 22 N.Y.2d 224, 227-228, 292 N.Y.S.2d 416, 239 N.E.2d 351(1968)(breathalyzer);Forte v. State, 686 S.W.2d 744, 754(Tex.Ct.App.1985)(blood alcohol content);State v. Welch, 135 Vt. 316, 321-322, 376 A.2d 351(1977)(breathalyzer);State v. Fitzsimmons, 93 Wash.2d 436, 448, 610 P.2d 893vacated and remanded, 449 U.S. 977, 101 S.Ct. 390, 66 L.Ed.2d 240aff'd, 94 Wash.2d 858, 620 P.2d 999(1980)(blood alcohol content)(both Federal and State Constitutions).

Some courts have held that there is no Federal constitutional right to counsel before taking a breathalyzer or blood alcohol content test.SeeBrank v. State, 528 A.2d 1185, 1188, 1190(Del.1987)(blood alcohol content);State v. Hoch, 500 So.2d 597(Fla.Dist.Ct.App.1986)(breathalyzer);Davis v. Pope, 128 Ga.App. 791, 792, 197 S.E.2d 861(1973)(blood alcohol content);State v. Jones, 457 A.2d 1116, 1120(Me.1983)(blood alcohol content);Nyflot v. Commissioner of Pub. Safety, 369 N.W.2d 512, 517(Minn.1985)(blood alcohol content)(neither constitutional nor statutory right);State v. Greene, 128 N.H. 317, 320-321, 512 A.2d 429(1986)(breath sample)(neither State nor Federal constitutional right);Seders v. Powell, 298 N.C. 453, 461, 259 S.E.2d 544(1979)(breathalyzer);In re Kean, 520 A.2d 1271, 1274(R.I.1987)(breathalyzer)(neither Federal nor State constitutional right).

We perceive nothing in art. 12 of the Massachusetts Declaration of Rights or in the due process clause of the Fourteenth Amendment on which the judge relied which compels the conclusion that a defendant has the right to counsel before deciding whether to submit to a breathalyzer test.The moment at which a person must decide to take or to refuse to take a breathalyzer test is not a critical stage in the criminal process.SeeState v. Greene, supra128 N.H. at 320, 512 A.2d 429;State v. Newton, 291 Or. 788, 803, 636 P.2d 393(1981).See generallyMoran v. Burbine, 475 U.S. 412, 430-431, 106 S.Ct. 1135, 1146-1147, 89 L.Ed.2d 410(1986).It must be conceded that his refusal to take the test results in suspension of his license for 120 days (G.L. c. 90, § 24[f ][1986 ed.] ), but the defendant has no right,...