LENOX — Defendants accused of driving while under the influence have no constitutional right to consult with a lawyer before deciding whether to take a breath test.

That was the decision of state's highest court in a decision handed down on Monday in a challenge to a Lenox OUI case.

"We acknowledge that the decision whether to submit to a Breathalyzer test is an important tactical decision for the defendant," the Supreme Judicial Court ruling reads. "This decision, however, occurs at the evidence gathering stage, before the Sixth Amendment ... right to counsel attaches."

Local law enforcement officials had been concerned that a ruling favorable to the defendant could, in theory, put an end to Breathalyzer testing, a crucial tool used to prosecute people suspected of driving under the influence.

The question arose from a November 2012 case in which a woman, Timothea Neary French, of Stockbridge, was arrested by Lenox Police after they received a report about a driver bumping into another vehicle.

Police suspected the woman was driving under the influence and administered field sobriety tests before placing her under arrest.

She was booked at the Lenox Police Department about 1:38 p.m. and asked to submit to a Breathalyzer test about 1:51 p.m.

At first, she refused, but consented a few minutes later and had a blood alcohol concentration of over 0.08. The decision doesn't specify what the actual BAC was.


Pittsfield attorney Elizabeth Quigley had argued that in part, because the BAC can be used as the sole basis for a conviction, the decision whether to submit can have an impact on trial strategies and defenses. That, she argued, qualified the driver's decision as a critical stage in the proceedings.

Quigley said she and her client are still deciding how to proceed with their case.

"We are obviously disappointed with the decision, although we respect the SJC and its rulings," she told The Eagle on Monday. "My client is going to review her options and decide how to proceed from here."

Quigley argued if the collection of BAC test results is a critical stage of criminal proceedings, defendants should have the same right to counsel being present as they do at other critical stages, including post-indictment lineups, post-indictment interrogations, plea hearings and arraignments.

The SJC said the Breathalyzer test is administered post-arrest but before the initiation of judicial proceedings, making it exempt from being considered a critical stage.

According to the ruling, the SJC considers taking a breath test akin to the collection of evidence such as the collection of fingerprints, blood samples and clothing and said those "are not critical stages since there is minimal risk that... counsel's absence at such stages might derogate from (the) right to a fair trial."

The SJC went on to say there is no rights violation occurring when deciding whether to take the test without counsel because drivers implicitly submit to such tests simply by driving.

"There is no right at risk of being sacrificed while deciding whether to submit to a Breathalyzer test because the defendant already consented to the Breathalyzer test by virtue of driving within the commonwealth."

The SJC sent the case back to the lower court.

"The case will proceed with the court's ruling guiding the judge about whether or not there was a right to counsel prior to my client being required to take a breath test," Quigley said.

Contact Bob Dunn at 413-496-6249.