Woman who argued for counsel before Breathalyzer pleads guilty to OUI


GREAT BARRINGTON — A Stockbridge woman who challenged her drunk-driving arrest to the state's highest court but lost the case has accepted a plea agreement in Southern Berkshire District Court.

Timothea Neary-French, 61, of Interlaken Road submitted to facts sufficient for a guilty plea on one count of operating a motor vehicle while under the influence of alcohol.

She was ordered to surrender her license for 45 days and enroll in an alcohol education program. The case was continued without a finding until Oct. 5, 2017.

Her challenge to the state's drunken-driving law, filed by attorney Elizabeth Quigley of Pittsfield, attracted statewide attention.

Quigley argued that defendants stopped for a potential charge of driving under the influence have a right to consult a lawyer before agreeing to take a Breathalyzer test. Quigley cited the U.S. and the Massachusetts constitutions as the basis for her contention.

But in a decision posted on Aug. 15, the Supreme Judicial Court ruled that defendants have no such constitutional right. The decision was written by Associate Justice Francis X. Spina, a Pittsfield native, as his final act before his retirement Aug. 12 following 17 years of service on the SJC.

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

In November 2012, Lenox Police arrested Neary French after witnesses reported she had bumped another vehicle several times while trying repeatedly but unsuccessfully to maneuver out of an ample downtown parking space in the early afternoon. She had been given a field sobriety test prior to her arrest.

According to the police report, she was asked to submit to a Breathalyzer test 13 minutes after she was booked. After first refusing, she agreed to the test, which showed a blood alcohol level above 0.08, the legal limit.

Local police as well as law-enforcement officials across the state had voiced concern that if the SJC issued a favorable ruling for the defendant, Breathalyzers could be jeopardized or even eliminated as a key test to determine whether to bring charges against drunk-driving suspects.

Prosecutors cautioned 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.

Lenox Police Chief Stephen O'Brien, in an Eagle interview last April, said that a court ruling in favor of the driver "would essentially render the breath test useless."

Before the high court, Quigley argued that since blood alcohol levels can be the sole basis for a conviction, the decision by a suspect on whether to submit to the test should not be taken without legal counsel.

"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 during arguments last May. "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."

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

Quigley contended that since the test results are a critical stage in a potential criminal case, defendants should have the same right to an attorney's advice as at arraignments, plea hearings and other key points in a legal proceeding.

Assistant Berkshire County District Attorney Joseph Coliflores argued that the revisions to the law did not give drivers the right to consult with a lawyer before taking the test.

"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,'" he told the court. "The 0.08 itself, standing alone, does not lead to a conviction."

The Supreme Judicial Court's decision stated that since the test is given after an arrest but prior to a formal filing of charges, the Breathalyzers are not a critical stage of a potential court case.

Spina's ruling compared the breath test as part of evidence gathering such as the collection of clothing, fingerprints and blood samples. He wrote that 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 ruling added that "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."

As a result of the high court's ruling, Neary-French's case was returned to the Southern Berkshire District Court, resulting in the plea agreement reached last week before Judge Paul Vrabel.

Contact Clarence Fanto at 413-637-2551.


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