Anthony M. Salerno

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Anthony M. Salerno

Attorney At Law

MA court: Do you have a right to a lawyer before a breath test?

On Behalf of | May 5, 2016 | Drunk Driving

The highest court in Massachusetts will decide if a driver has a right to legal counsel before a breath test when pulled over for suspicion of drunk driving. The Supreme Judicial Court is scheduled to hear the case on Thursday, according to an article in Mass Live.

What is this case about?

The case involves a woman who was arrested after her vehicle was allegedly observed driving erratically. An officer pulled her over and conducted field sobriety tests. Ultimately, the driver was arrested for operating under the influence. Both before and after the driver was booked, she asked to make a phone call. She was denied and instead told by the officer to take a breath test. After a short period of time, she agreed. The breath test was over the legal limit of 0.08 percent. Over an hour after she requested to make the phone call, the driver was allowed to make her call.

Generally, drivers agree to submit to a breathalyzer test under the state’s implied consent law. This law is agreed to by every driver in the state when they get their driver’s licenses. However, drivers have the right to refuse this test. Refusal does come with repercussions, generally those who refuse to follow this law face a six month driver’s license suspension – but, evidence of the refusal cannot be used against the driver in a criminal proceeding.

What has changed?

Originally, courts determined that drivers did not need to consult with legal counsel before deciding to take a breath test because a breath test alone was not the only thing used to determine if the driver was operating the vehicle while impaired. An officer also had to prove that the driver was impaired; evidence of a blood alcohol level over the legal limit could only be a part of this proof. As a result, the breathalyzer test alone was not seen as a critical part of the investigation so legal counsel while making this decision was not viewed as crucial.

A change in the law has made it so the breathalyzer test on its own is sufficient to support the charges. This change supports a renewed argument that the breathalyzer test is a critical part of the investigation and, as such, that the driver should have the right to legal counsel before deciding to take the test.

Those who oppose the use of legal counsel at this stage continue to argue that it is not a critical part of the investigation and that a driver’s rights are protected since the driver has the opportunity to make a phone call and get an independent exam. This feeds into a second argument in this particular case, as the driver was not given her phone call within the hour as required.

How will this case impact me?

The progression of this case is interesting for two reasons. First, it provides an example of the evolving and complex nature of criminal law in Massachusetts. Not everyone is aware of these and other potential changes that could impact their case. This highlights the need for legal counsel when navigating these issues, to better ensure that your legal rights are protected.

Secondly, depending on how the court rules the law in the state could change. It is possible that the court could agree with the defendant and find that driver’s should have the right to legal counsel before agreeing to a breathalyzer test in the future.