Suspects have no constitutional right to consult with lawyers when presented with a lawful demand for a chemical sample via a Breathalyzer test, according to the Commonwealth of Massachusetts’ Appeals Court.
Like most other DUI cases, Commonwealth v. Neary-French began with a traffic stop. A Berkshire police officer received an anonymous tip that a driver was “’bumping into’” another vehicle. Based solely on this tip, that officer detained Timothea Neary-French. After backup arrived, Ms. Neary-French performed several field sobriety tests. After she was arrested and transported to jail, she was advised of her Miranda rights, and then consented to a Breathalyzer test which showed a BAC above the legal limit.
Back in 1989, the Supreme Judicial Council ruled that DUI suspects did not have the right to speak with an attorney prior to a Breathalyzer test; at that time, a BAC above the legal limit was only a presumption of intoxication. But in 2003, the Legislature changed the law, and made BAC results above the legal limit per se evidence of intoxication. Ms. Neary French’s attorney argued that the change made a Breathalyzer test a “critical stage” that triggered the right to counsel. The court ruled that the new law did not change the right to counsel. It relied, in part, on a line of cases stretching from Kirby v. Illinois (1972) to Missouri v. Frye (2012), in which the United States Supreme Court held that defendants do not have the right to an attorney until “the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”
The court did acknowledge that consent to a Breathalyzer test “is an important decision, but it is not a critical stage.”
The Law in Illinois
Illinois law closely tracks Massachusetts law in this area. Once upon a time, a .08 BAC was only a presumption of intoxication, but a BAC above the legal limit is now per se evidence of intoxication. Even still, officers need only inform defendants of their rights under the implied consent law prior to demanding chemical samples. Among other things, this law states that a person’s license can be administratively suspended following either a refusal or a test result that shows a BAC above the legal limit.
Following a refusal or failure suspension, the defendant has the right to a hearing; the issues are essentially limited to the legality of the arrest and the legitimacy of the Breathalyzer or other machine. Many defendants do not challenge the suspension because these hearings are difficult to win.
But “win” is sometimes a relative term in criminal law, especially in preliminary hearings. If the circumstances were questionable (e.g. a weak third-party tip or the officer did not continually watch the defendant for the full 20-minute statutory period), the hearing officer often reduces the period of suspension or probates part of it. If nothing else, the hearing serves as free discovery and gives an attorney a valuable look at the prosecutor’s case.
Partner with Assertive Attorneys
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