Challenge in Berkshire drunken driving case could undermine Breathalyzer use

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The state's highest court is poised to consider a Berkshire drunken driving case that could have far-reaching implications on the future prosecution of such cases.

The case could determine whether a motorist should have the opportunity to consult an attorney before taking a breath test, a shift that police chiefs and district attorneys warn could undermine their ability to collect crucial evidence in a timely fashion.

The Supreme Judicial Court (SJC) is set to hear arguments May 5 on the issue first brought to the Massachusetts Appeals Court in February 2015. Two months ago, the high court stepped in on its own and took over the case.

Pittsfield attorney Elizabeth Quigley, representing Timothea Neary French of Stockbridge, explained in a phone interview that the SJC intervened "because of the novel nature of the controversy."

"The outcome will set a precedent and hopefully provide guidance" on whether a motorist arrested for driving drunk has the right to consult with an attorney "in a reasonable time, say a half hour" before deciding whether to take a Breathalyzer test, Quigley said.

"It's a simple argument, nothing judicially complex," the attorney said. "We don't need to talk about a tremendous amount of time. If those arrested can't reach a lawyer within a reasonable time as determined by the SJC, at least they've been given the right."

According to Lenox police, Neary French was seen making multiple attempts to pull out of a downtown Franklin Street parking space about 1:15 p.m. on Nov. 28, 2012.

"The vehicle was unable to navigate its way out of the parking spot," said Police Chief Stephen O'Brien, who had responded to the call along with Officer William Colvin in response to a report from a passerby.

"The vehicle collided with another vehicle slightly, several times," the chief said in an interview, "and there was no real reason that vehicle couldn't exit its parking spot."

The driver "displayed all the signs of an intoxicated operator," O'Brien stated. Following a field sobriety test and his observations of the motorist, Colvin arrested Neary French on an OUI charge, first offense. At the police station, the result of the breath test she agreed to take was above the legal 0.08 blood alcohol limit.

In early 2013, Neary French asked Southern Berkshire District Court Justice Charles W, Groce to suppress the breath test result.

Citing a defendant's right to legal counsel under the Massachusetts Declaration of Rights as well as the 6th and 14th amendments of the U.S. Constitution guaranteeing due process, Neary French contended that she should have had the option to contact an attorney before taking the test.

After the issue was raised, Groce relayed the question to the state Appeals Court, which took the case before the SJC grabbed it.

Quigley's court filing states that Neary French based her assertion on a 2003 state law amendment indicating that a breath test of 0.08 or greater is direct evidence proving legal intoxication — "a critical stage in the criminal process," the attorney wrote. A previous 1989 court case had considered breath tests as just one piece of evidence in determining the outcome of a case.

"A critical stage is one in which the defendant's rights could be sacrificed or lost," Quigley argued. "A 'critical stage' is every stage of a criminal proceeding at which the advice of counsel is necessary to ensure the defendants' right to a fair trial or every stage at which the absence of counsel might impair the preparation or presentation of a defense."

But Berkshire District Attorney David Capeless has warned that an SJC court ruling favorable to the defendant could, in theory, put an end to Breathalyzer testing and could negate "very well-intentioned and fair procedures that are there to protect the public."

Prosecutors are concerned that because such tests must be given promptly to produce an accurate result, delays waiting for an attorney to respond would yield a blood alcohol result below the legal limit.

O'Brien said that a court ruling in favor of the driver "would certainly be very damaging if a patrolman and someone arrested have to wait for an attorney to be summoned and respond to the police station. That can take some time, and by then the results are different."

"It would essentially render the breath test useless," he said.

Neary French, in a brief phone conversation on Tuesday, declined to discuss the court case, citing the advice of her attorney.

Quigley told The Eagle that the high court can come up with "a reasonable plan not to interfere with 'effervescent evidence,' " the legal term for breath test results that change over an extended period of time.

"The district attorneys and the police are trying to make this too difficult," Quigley said. "They don't want people talking to a lawyer and making an informed decision before deciding whether to take the breath test."

In her 42-page court filing, the attorney contended that the "brief intrusion" resulting from consultation with an attorney "would give the defendant the adequate information necessary to make an informed decision on whether or not to take the breath test."

On behalf of her client, Quigley asked the state's highest court to find that Neary French was denied her right to legal counsel at the "critical stage" of the court case in violation of the U.S. Constitution and the state's Declaration of Rights.

Information from the Boston Herald was included in this report.

Contact Clarence Fanto at 413-637-2551.

In their own words ...

"The creation of a new right advocated by the defendant will create tremendous strains on the judicial system."

— Assistant Berkshire District Attorney Joseph Coliflores

"The decision to take the Breathalyzer completely changes trial strategies and defenses available to a defendant. It is hard to think of a more critical decision in an OUI case than a defendant's decision whether or not to take a breath test [which] becomes direct evidence of the offense. Denial of counsel to a defendant during a critical stage is considered to be the pinnacle to an unfair trial warranting the reversal of a conviction."

— Defense Attorney Elizabeth Quigley

"When you get your driver's license in Massachusetts, you've already implied your consent to take a Breathalyzer test if you're arrested for OUI. Of course, you can refuse that, it's not admitted into evidence but there's a registry penalty, some degree of license suspension."

— Lenox Police Chief Stephen O'Brien

"If attorneys have to be present for breath tests — and because time is of the essence — the whole process would be affected. You're just creating a slippery slope of potential abuses."

— Chelsea Police Chief Brian Kyes, president of the Massachusetts Major City Police Chiefs Association


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