Commonwealth v. Neary-French

• Decision Date: 15 August 2016
• Docket Number: SJC–12057.
• Citation: 56 N.E.3d 159,475 Mass. 167
• Parties: COMMONWEALTH v. Timothea T. NEARY–FRENCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

475 Mass. 167

56 N.E.3d 159

COMMONWEALTH

v.Timothea T. NEARY–FRENCH.

SJC–12057.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued May 5, 2016.

Decided Aug. 15, 2016.

Elizabeth J. Quigley, Pittsfield, for the defendant.

Joseph G.A. Coliflores, Assistant District Attorney(Joseph A. Pieropan, Assistant District Attorney, with him) for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.¹

SPINA, J.

In Commonwealth v. Brazelton,404 Mass. 783, 785, 537 N.E.2d 142(1989), this court held that there is no right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution or art. 12 of the Massachusetts Declaration of Rights before a defendant decides whether to take a breathalyzer test.In this case, we are asked to revisit our holding in Brazelton in lieu of the 2003amendments made to G.L. c. 90, § 24, the statute establishing the offense of driving while under the influence of intoxicating liquor.²Prior to the 2003 amendments, G.L. c. 90, § 24, included a permissible inference that an individual was under the influence of alcohol if his or her blood alcohol level was .08 or more.SeeSt. 2003, c. 28, § 4.The 2003amendments eliminated the permissible inference and made it “a violation to operate a motor vehicle not only under the influence of intoxicating liquor, but also with a blood alcohol level of .08 or more.”Commonwealth v. Colturi,448 Mass. 809, 811, 864 N.E.2d 498(2007).This is known as a “per se” violation.^3,4Id. at 810, 864 N.E.2d 498.

The defendant in this case was arrested for operating while under the influence of intoxicating liquor and was not given an opportunity to consult with counsel before having to decide whether to submit to a breathalyzer test.The defendant filed a motion to suppress the results of the breathalyzer test, arguing that she had a right to counsel under the Sixth and Fourteenth Amendments of the United States Constitutionandart. 12 of the Massachusetts Declaration of Rights, before deciding whether to submit to a breathalyzer test.⁵After an evidentiary hearing, a District Court judge reported a question of law pursuant to Mass. R.Crim. P. 34, as amended, 442 Mass. 1501(2004), to the Appeals Court.We transferred the reported question to this court on our own motion.The reported question asks,

“Whether the 2003amendment to G.L. c. 90, § 24, which created a new ‘.08 or greater’ theory by which to prove an [operating while under the influence of intoxicating liquor] offense, where a breath test reading of .08 or greater is an element of the offense, now makes the decision by a defendant whether or not to take the breath test itself a critical stage of the criminal proceedings requiring that the defendant be advised of their right to counsel prior to making that decision, pursuant to art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments of the United States Constitution.”

We answer the reported question in the negative.

1.Facts.The District Court judge made the following findings of fact.On November 28, 2012, at approximately 1:15 p.m. , a woman signaled to Chief Stephen O'Brien of the Lenox police department while he was on routine patrol in Lenox.The woman reported that the defendant's vehicle was “bumping into” another vehicle.O'Brien approached the defendant, and based upon his observations, he suspected that she was operating while under the influence.He summoned Officer William Colvin for assistance.Colvin arrived at the scene to administer field sobriety tests to the defendant.Based on the defendant's performance on the field sobriety tests, as well as his observations, Colvin arrested the defendant for operating while under the influence.

The defendant arrived at the Lenox police station at approximately 1:31 p.m., and at approximately 1:38 p.m., was advised of the Miranda rights and began the booking process.At approximately 1:50 p.m., the defendant was presented with a “statutory rights and consent” form, which contained “[operating while under the influence] rights.”The form described her right to a physician under G.L. c. 263, § 5A,⁶ her right to make a telephone call under G.L. c. 276, § 33A⁷ , a request to submit to a chemical test under G.L. c. 90, § 24, and a notice to persons holding a commercial driving license.The defendant was advised by police officers of her statutory right to make a telephone call under G.L. c. 276, § 33A, and was asked by police to submit to a breathalyzer test at approximately 1:51 p.m.At first, the defendant refused to take the breathalyzer test, but she subsequently consented after three to four minutes and performed the test after the appropriate observation time.⁸She completed the test at approximately 2:18 p.m.She had a blood alcohol level above .08.

2.Discussion.The defendant argues she has a right to counsel under the Sixth Amendmentandart. 12 because, after the 2003amendments to G.L. c. 90, § 24, and the creation of a “per se” violation theory, the decision whether to submit to a breathalyzer test is a critical stage in the criminal proceedings.The defendant asserts that because breathalyzer results can be used as the sole basis (with proof of operation on a public way) for a conviction of operating while under the influence of alcohol, the decision whether 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.

In Brazelton,404 Mass. at 785, 537 N.E.2d 142, prior to the 2003amendments, this court concluded that the decision whether to submit to a breathalyzer test was not a critical stage in the criminal process.We explained that the statutory right of access to a telephone within one hour upon arrival at the police station and the statutory right to be examined by a physician of the defendant's own choosing adequately protect a defendant's rights.Id.We also recognized the potential practical problems that a right to counsel at the breathalyzer test stage could present, such as the possibility of “stale and inaccurate” results due to a delayed breathalyzer test because counsel is unavailable.Id.We now revisit our holding in Brazelton to determine whether the creation of a “per se” violation theory under G.L. c. 90, § 24, transforms the decision whether to submit to a breathalyzer test into a critical stage in the criminal justice process.We conclude that, despite the creation of a “per se” violation theory, there is no constitutional right to counsel under the Sixth Amendment or art. 12 when deciding whether to submit to a breathalyzer test.

The Sixth Amendmentandart. 12 provide criminal defendants the right to counsel at all “critical stages” of the prosecution.United States v. Wade,388 U.S. 218, 224, 236–237, 87 S.Ct. 1926, 18 L.Ed.2d 1149(1967);Commonwealth v. Woods,

427 Mass. 169, 174, 693 N.E.2d 123(1998).In Kirby v. Illinois,406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411(1972), the Supreme Court of the United States qualified the Sixth Amendment critical stage analysis by concluding that a right to counsel does not attach until “at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”Id. at 684, 689–690, 92 S.Ct. 1877(plurality opinion)(right to counsel does not attach to postarrest, preindictment police station showup).

The Supreme Court's holding in Kirby has been consistently adhered to in subsequent cases.See e.g., Montejo v. Louisiana,556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955(2009)(“Under our precedents, once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings”);Rothgery v. Gillespie County, Tex.,554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366(2008);Moran v. Burbine,475 U.S. 412, 428–429, 106 S.Ct. 1135, 89 L.Ed.2d 410(1986);United States v. Gouveia,467 U.S. 180, 187–189, 104 S.Ct. 2292, 81 L.Ed.2d 146(1984).“[L]ooking to the initiation of adversary judicial proceedings, far from being mere formalism, is fundamental to the proper application of the Sixth Amendment right to counsel.”Moran, supra at 431, 106 S.Ct. 1135.The initiation of adversary judicial criminal proceedings is when “the government has committed itself to prosecute, and ... the adverse positions of government and defendant have solidified” and when the “defendant finds himself ... immersed in the intricacies of substantive and procedural criminal law.”Kirby, supra at 689, 92 S.Ct. 1877(plurality opinion).The Supreme Court has held that postindictment lineups, postindictment interrogation by the State, plea hearings, and arraignments are critical stages where the Sixth Amendment right to counsel attaches.SeeMissouri v. Frye,––– U.S. ––––, 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379(2012)(listing critical stages);Montejo, supra at 786, 129 S.Ct. 2079(interrogation by State);Iowa v. Tovar,541 U.S. 77, 87, 124 S.Ct. 1379, 158 L.Ed.2d 209(2004)(plea hearing);Wade, supra at 236–237, 87 S.Ct. 1926(postindictment lineup).It is well settled that the right to counsel under the Sixth Amendment does not attach until the occurrence of critical stages at or after the initiation of adversary judicial proceedings, whether that be by formal charge, preliminary hearing, indictment, information, or arraignment.Kirby, supra.The breathalyzer test is administered postarrest but before the initiation of adversary judicial proceedings.Therefore, under the Sixth Amendment, there is no right to counsel at the time a defendant is deciding whether to submit to a breathalyzer test.⁹

Similarly, under art. 12, our precedents consistently have held that the right to counsel“attaches at the time judicial proceedings are commenced.”...