June ruling expected in Breathalyzer test case


BOSTON >> A ruling is expected from the state's highest court by June on whether drivers arrested by police have a constitutional right to consult an attorney before taking a Breathalyzer test.

Pittsfield attorney Elizabeth Quigley argued in favor of a protection for suspects in OUI cases during a hearing before the Supreme Judicial Court in Boston on Friday.

The case stems from the arrest of a Stockbridge driver, Timothea Neary-French, in Lenox nearly three years ago. She was charged with driving while intoxicated when police spotted her unable to maneuver out of a parking space downtown that had plenty of room.

During the early-afternoon incident on Nov. 28, 2012, the vehicle "collided with another vehicle slightly, several times, and there was no real reason that vehicle couldn't exit its parking spot," Lenox Police Chief Stephen O'Brien told The Eagle last month. The driver "displayed all the signs of an intoxicated operator," he added.

State law allows for a drunk driving conviction if a Breathalyzer test comes up with more than 0.08 percent blood alcohol.

"This is about the only crime that I can think of, and perhaps that you can think of as well, where you are convicted by a machine," Quigley told the court. "They could be 'as sober as the proverbial judge,' fail the breath test, get 0.08 or above, and be solely convicted on that basis."

Judge Margot Botsford's reply drew laughter: "Let's hope the judges are a little bit under that."

Quigley, representing French, is trying to rule out the breath test findings because, she argued, her client did not get a chance to call an attorney before taking the test.

Quigley is basing her case on changes to the state's OUI law in 2003. Since then, a failed breath test is considered to be direct evidence of intoxication.

In her brief to the court, Quigley wrote that the rule makes the decision to take a breath test a "critical stage" in the criminal process. Under state law, everyone has a right to an attorney at "critical stages."

The Berkshire County District Attorney's office contends that state lawmakers did not intend to give drivers the right to call a lawyer before taking the test.

Quigley, citing the U.S. Constitution's Sixth Amendment guarantee of the right to counsel, told Chief Justice Ralph Gants a defendant would also have the right under the Massachusetts Declaration of Rights.

Justice Barbara Lenk asked Quigley how the right to counsel would work and whether it would be part of reading Miranda rights to someone arrested.

The Miranda rights state that a suspect arrested must be given access to an attorney before being questioned by police during booking. Quigley contended that since booking can take up to an hour, a defendant could be informed of a right to call an attorney before deciding whether or not to take the breath test.

During the 36 minutes of oral arguments, the justices gave Quigley 27 minutes to answer their questions, while Assistant Berkshire County District Attorney Joseph Coliflores got nine minutes.

Gants told Coliflores that police do not warn people arrested about the legal consequences of failing the breath test.

"The fact of the matter is, if you do take the Breathalyzer test and you blow above a 0.08, you're going to be convicted of a crime. They don't tell you that," Gants said.

"Not necessarily, your honor," Coliflores responded. "You still have to meet all of the other elements of operating under the influence — that that person was indeed operating that vehicle, that it indeed was a public way. The 0.08 itself, standing alone, does not lead to a conviction."

Justice Botsford seemed skeptical. "So everyone is waiting in the road for their attorney to arrive," she said. "It's a great scene." She questioned whether waiting for an attorney would affect the result of the test.

Justice Gants noted that many OUIs occur at night, when lawyers may not be readily available.

Justice Francis X. Spina asked: "If the person doesn't have the funds to pay for a lawyer, will a lawyer be appointed?"

"If they don't have funds, I don't know what to say about that, but I don't think that should be a reason why they don't have a right," Quigley responded.

"But if there's a right, it has to be recognized that people without funds, the state is going to pay for," Justice Botsford replied, to which Justice Robert Cordy quickly added, "And arrange for it."

This article was compiled from reports by Boston Public Radio station WBUR, the Boston Herald and The Eagle.


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