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SJC-12057

COMMONWEALTH vs. TIMOTHEA T. NEARY-FRENCH.

Berkshire. May 5, 2016. - August 15, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.1

Motor Vehicle, Operating under the influence. Constitutional Law, Breathalyzer test, Assistance of counsel. Practice, Criminal, Assistance of counsel.

Complaint received and sworn to in the Southern Berkshire Division of the District Court Department on November 29, 2012.

A pretrial motion to suppress evidence was heard by Charles W. Groce, III, J., and a question of law was reported by him.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Elizabeth J. Quigley for the defendant. Joseph G.A. Coliflores, Assistant District Attorney (Joseph A. Pieropan, Assistant District Attorney, with him) for the Commonwealth.

1 Justice Spina participated in the deliberation on this case and authored this opinion prior to his retirement. Justices Cordy and Duffly participated in the deliberation on this case prior to their retirements. 2

SPINA, J. In Commonwealth v. Brazelton,

(1989), this court held that there is no right to counsel under

the Sixth and Fourteenth Amendments to the United States

Constitution or art. 12 of the Massachusetts Declaration of

Rights before a defendant decides whether to take a breathalyzer

test. In this case, we are asked to revisit our holding in

Brazelton in light of the 2003 amendments made to G. L. c. 90,

§ 24, the statute establishing the offense of driving while

under the influence of intoxicating liquor.2 Prior to the 2003

amendments, G. L. c. 90, § 24, included a permissible inference

that an individual was under the influence of alcohol if his or

her blood alcohol level was .08 or more. See St. 2003, c. 28,

§ 4. The 2003 amendments eliminated the permissible inference

and made it "a violation to operate a motor vehicle not only

under the influence of intoxicating liquor, but also with a

blood alcohol level of .08 or more." Commonwealth v. Colturi,

2 General Laws c. 90, § 24 (1) (a) (1), states, in relevant part, "Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor . . . shall be punished . . . ." 3

(2007). This is known as a "per se"

violation.3,4

.

The defendant in this case was arrested for operating while

under the influence of intoxicating liquor and was not given an

opportunity to consult with counsel before having to decide

whether to submit to a breathalyzer test. The defendant filed a

motion to suppress the results of the breathalyzer test, arguing

that she had a right to counsel under the Sixth and Fourteenth

Amendments of the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights, before deciding whether to

submit to a breathalyzer test.5 After an evidentiary hearing, a

District Court judge reported a question of law pursuant to

Mass. R. Crim. P. 34, as amended,

(2004), to the

Appeals Court. We transferred the reported question to this

court on our own motion. The reported question asks,

3 This theory is an alternative to the "impaired ability violation," Commonwealth v. Colturi,

(2007), where the Commonwealth must prove that the individual was "under the influence of intoxicating liquor." G. L. c. 90, § 24 (1) (a) (1). 4 Under Federal law, States are required to enact a law that proscribes driving a motor vehicle with a blood alcohol level of .08 or greater.

(2012). If a State does not enact such a law, it will lose Federal highway funds.

5 The defendant, in her motion to suppress, also argued that she was denied her right to a telephone call pursuant to G. L. c. 276, § 33A. However, this issue was not presented in the reported question so we do not address it. 4

"Whether the 2003 amendment to G. L. c. 90, § 24, which created a new '.08 or greater' theory by which to prove an [operating while under the influence of intoxicating liquor] offense, where a breath test reading of .08 or greater is an element of the offense, now makes the decision by a defendant whether or not to take the breath test itself a critical stage of the criminal proceedings requiring that the defendant be advised of their right to counsel prior to making that decision, pursuant to art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments of the United States Constitution."

We answer the reported question in the negative.

1. Facts. The District Court judge made the following

findings of fact. On November 28, 2012, at approximately 1:15

P.M., a woman signaled to Chief Stephen O'Brien of the Lenox

police department while he was on routine patrol in Lenox. The

woman reported that the defendant's vehicle was "bumping into"

another vehicle. O'Brien approached the defendant, and based

upon his observations, he suspected that she was operating while

under the influence. He summoned Officer William Colvin for

assistance. Colvin arrived at the scene to administer field

sobriety tests to the defendant. Based on the defendant's

performance on the field sobriety tests, as well as his

observations, Colvin arrested the defendant for operating while

under the influence.

The defendant arrived at the Lenox police station at

approximately 1:31 P.M., and at approximately 1:38 P.M., was

advised of the Miranda rights and began the booking process. At 5

approximately 1:50 P.M., the defendant was presented with a

"statutory rights and consent" form, which contained "[operating

while under the influence] rights." The form described her

right to a physician under G. L. c. 263, § 5A,6 her right to make

a telephone call under G. L. c. 276, § 33A7, a request to submit

to a chemical test under G. L. c. 90, § 24, and a notice to

persons holding a commercial driving license. The defendant was

advised by police officers of her statutory right to make a

telephone call under G. L. c. 276, § 33A, and was asked by

police to submit to a breathalyzer test at approximately 1:51

P.M. At first, the defendant refused to take the breathalyzer

test, but she subsequently consented after three to four minutes

6 General Laws c. 263, § 5A, states in relevant part: "A person held in custody at a police station or other place of detention, charged with operating a motor vehicle while under the influence of intoxicating liquor, shall have the right, at his request and at his expense, to be examined immediately by a physician selected by him." 7 General Laws c. 276, § 33A, states: "The police official in charge of the station or other place of detention having a telephone wherein a person is held in custody, shall permit the use of the telephone, at the expense of the arrested person, for the purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney. Any such person shall be informed forthwith upon his arrival at such station or place of detention, of his right to so use the telephone, and such use shall be permitted within one hour thereafter." 6

and performed the test after the appropriate observation time.8

She completed the test at approximately 2:18 P.M. She had a

blood alcohol level above .08.

2. Discussion. The defendant argues she has a right to

counsel under the Sixth Amendment and art. 12 because, after the

2003 amendments to G. L. c. 90, § 24, and the creation of a "per

se" violation theory, the decision whether to submit to a

breathalyzer test is a critical stage in the criminal

proceedings. The defendant asserts that because breathalyzer

results can be used as the sole basis (with proof of operation

on a public way) for a conviction of operating while under the

influence of alcohol, the decision whether to submit to a

breathalyzer test can have a significant impact on trial

strategies and available defenses, rendering the decision a

critical stage in the proceedings.

In Brazelton,

, prior to the 2003

amendments, this court concluded that the decision whether to

submit to a breathalyzer test was not a critical stage in the

criminal process. We explained that the statutory right of

access to a telephone within one hour upon arrival at the police

station and the statutory right to be examined by a physician of

the defendant's own choosing adequately protect a defendant's

8 The administrator of the breathalyzer test must observe the individual for no less than fifteen minutes before administering the test. 501 Code Mass. Regs. § 2.13 (2016). 7

rights. Id. We also recognized the potential practical

problems that a right to counsel at the breathalyzer test stage

could present, such as the possibility of "stale and inaccurate"

results due to a delayed breathalyzer test because counsel is

unavailable. Id. We now revisit our holding in Brazelton to

determine whether the creation of a "per se" violation theory

under G. L. c. 90, § 24, transforms the decision whether to

submit to a breathalyzer test into a critical stage in the

criminal justice process. We conclude that, despite the

creation of a "per se" violation theory, there is no

constitutional right to counsel under the Sixth Amendment or

art. 12 when deciding whether to submit to a breathalyzer test.

The Sixth Amendment and art. 12 provide criminal defendants

the right to counsel at all "critical stages" of the

prosecution. United States v. Wade,

(1967); Commonwealth v. Woods,

(1998). In

Kirby v. Illinois,

(1972), the Supreme Court of the

United States qualified the Sixth Amendment critical stage

analysis by concluding that a right to counsel does not attach

until "at or after the initiation of adversary judicial criminal

proceedings -- whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment."

(plurality opinion) (right to counsel does not attach to

postarrest, preindictment police station showup). The Supreme 8

Court's holding in Kirby has been consistently adhered to in

subsequent cases. See e.g., Montejo v. Louisiana,

(2009) ("Under our precedents, once the adversary judicial

process has been initiated, the Sixth Amendment guarantees a

defendant the right to have counsel present at all 'critical'

stages of the criminal proceedings"); Rothgery v. Gillespie

County, Tex.,

(2008); Moran v. Burbine,

(1986); United States v. Gouveia,

(1984). "[L]ooking to the initiation of adversary

judicial proceedings, far from being mere formalism, is

fundamental to the proper application of the Sixth Amendment

right to counsel."

. The initiation of

adversary judicial criminal proceedings is when "the government

has committed itself to prosecute, and . . . the adverse

positions of government and defendant have solidified" and when

the "defendant finds himself . . . immersed in the intricacies

of substantive and procedural criminal law."

(plurality opinion). The Supreme Court has held that

postindictment lineups, postindictment interrogation by the

State, plea hearings, and arraignments are critical stages where

the Sixth Amendment right to counsel attaches. See Missouri v.

Frye,

(2012) (listing critical stages);

(interrogation by State); Iowa v. Tovar,

(2004) (plea hearing);

at 236-237 9

(postindictment lineup). It is well settled that the right to

counsel under the Sixth Amendment does not attach until the

occurrence of critical stages at or after the initiation of

adversary judicial proceedings, whether that be by formal

charge, preliminary hearing, indictment, information, or

arraignment.

The breathalyzer test is

administered postarrest but before the initiation of adversary

judicial proceedings. Therefore, under the Sixth Amendment,

there is no right to counsel at the time a defendant is deciding

whether to submit to a breathalyzer test.9

Similarly, under art. 12, our precedents consistently have

held that the right to counsel "attaches at the time judicial

proceedings are commenced." Commonwealth v. Anderson,

The Supreme Court of the United States recently held that conducting a breathalyzer test without a warrant does not violate the prohibition under the Fourth Amendment to the United States Constitution against unreasonable searches. Birchfield v. North Dakota,

(2016). Analyzing under the search incident to arrest doctrine, the Court held that a breath test does not "implicat[e] significant privacy concerns" and the State has a need to conduct breathalyzer tests to combat drunken driving (citation omitted).

, 2178- 2179. In North Dakota and Minnesota, the two States where the facts arose in this case, a refusal to submit to a breathalyzer test (or a blood test) would subject the individual to criminal penalties. See

; Minn. Stat. § 169A.20, subdivisions 2-3 (2016), unconstitutional as applied by State v. Thompson,

(Minn. Ct. App. 2015);

(2016), unconstitutional as applied by

. In Massachusetts, an individual is subject to only civil penalties. G. L. c. 90, § 24 (1) (f) (1). 10

548, 553-554 (2007). See Commonwealth v. Celester,

(2016); Commonwealth v. Caldwell,

(2011) ("formal adversary proceedings [had not] commenced

against him, so his right to counsel under the Sixth Amendment

or art. 12 had yet to attach"); Lavallee v. Justices in the

Hampden Superior Court,

(2004) ("The

right to trial counsel under art. 12 attaches at least by the

time of arraignment"); Commonwealth v. Patterson,

,

776 n.10 (2000) ("The defendant's Sixth Amendment and art. 12

rights to the effective assistance of counsel did not attach

until . . . arraignment"); Commonwealth v. Griffin,

(1989) ("a person's right to assistance of counsel

under both the Sixth Amendment . . . and art. 12 . . . attaches

only from the time that adversary judicial proceedings have been

initiated"); Jiles v. Department of Correction,

(2002). Specifically, "[t]his court has held,

'[t]here is no authority for the proposition that the right to

counsel under the Sixth and Fourteenth Amendments . . . or under

art. 12 . . . arises prior to arraignment, even though a

criminal complaint and an arrest warrant have issued.'"

Commonwealth v. Beland,

(2002), quoting

Commonwealth v. Ortiz,

, 67 n.1 (1996). See

Commonwealth v. Jones,

(1988). The right to

counsel under art. 12 attaches at a motion to suppress hearing, 11

a probable cause hearing, and sentencing.

at

235 n.13 (probable cause hearing and sentencing); Commonwealth

v. Johnson,

(2011) (motion to

suppress hearing). Because the decision whether to submit to a

breathalyzer test takes place before the initiation of formal

judicial proceedings, we conclude that there is no right to

counsel at the breathalyzer stage under art. 12.

We acknowledge that the decision whether to submit to a

breathalyzer test is an important tactical decision for the

defendant. See Commonwealth v. McCoy,

(2009). This decision, however, occurs at the evidence

gathering stage, before the Sixth Amendment or art. 12 right to

counsel attaches. The Supreme Court in Wade,

-

228, explained that "preparatory steps, such as systematized or

scientific analyzing of the accused's fingerprints, blood

sample, clothing, [and] hair . . . are not critical stages since

there is minimal risk that his counsel's absence at such stages

might derogate from his right to a fair trial." We cannot say

that the defendant is "immersed in the intricacies of

substantive and procedural criminal law" when deciding whether

to submit to a breathalyzer test. Kirby,

(plurality opinion). The term "critical stage" is a term of art

and only refers to actions and events postindictment or

arraignment. The decision whether to submit to a breathalyzer 12

is an important decision, but it is not a critical stage because

the decision occurs before indictment and arraignment.

The defendant cites to a variety of cases from different

jurisdictions to support her argument. We do not find these

cases persuasive.10 Our decision is in line with the vast

majority of jurisdictions that have addressed this issue. The

Supreme Court of the United States in Nyflot v. Minnesota Comm'r

10 The defendant relies on Heles v. South Dakota,

(D.S.D.), vacated as moot by

(8th Cir. 1982); People v. Gursey,

(1968); Forte v. State,

(Tex. Ct. App. 1985), aff'd in part, rev'd in part,

(1986); State v. Welch,

(1977); and State v. Fitzsimmons,

, vacated by

(1980), to support her argument that other jurisdictions have found a Sixth Amendment right to counsel. We are not persuaded. Heles subsequently was vacated as moot, and therefore has little precedential value. Additionally, a later New York appellate opinion clarified Gursey, explaining that the court relied on a State statutory right to counsel when concluding that there is a right to counsel. See People v. Washington,

(2014). In Forte, after numerous remands and appeals, the Texas Court of Criminal Appeals concluded that there was no right to counsel under the Federal or State Constitution. Forte v. State,

(Tex. Crim. App. 1988), overruled by McCambridge v. State,

(Tex. Crim. App. 1989), cert. denied

(1990) (clarifying right to counsel attaches after formal charges are brought against defendant, rejecting Forte's case-by-case basis). The decision in Welch is questionable as in State v. Lombard,

(1985), the court concluded that, "[a]pplying the critical stage analysis, we are not persuaded that the decision to take or refuse to take a breath test implicates the defendant's right to counsel under the federal constitution." However, the Welch decision was codified in

(2016), providing a limited statutory right to counsel at the breathalyzer test stage. Last, the Washington Supreme Court on remand in Fitzsimmons clarified that its holding was based solely on State statutory principles. State v. Fitzsimmons,

(1980). 13

of Pub. Safety,

, 1029 (1985), addressed whether a

defendant had a Sixth Amendment right to counsel before deciding

whether to consent to a blood alcohol test. Id. at 1029.

Below, the Minnesota Supreme Court had concluded that there was

no right to counsel under the Sixth and Fourteenth Amendments.

Id. at 1028-1029. See Nyflot v. Commissioner of Pub. Safety,

(Minn. 1985). The United States Supreme

Court dismissed the appeal for want of a substantial Federal

question.11

. The majority of State courts

have held that a defendant's Sixth Amendment right to counsel

does not attach prior to the defendant's decision whether to

submit to a breathalyzer test.12,13 Only three State courts have

11 "[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Mandel v. Bradley,

(1977). 12 See, e.g., Nyflot v. Minnesota Comm'r of Pub. Safety,

, 1029 (1985) ("Most of the courts that have considered this issue have rejected the argument that the Sixth Amendment right to counsel covers the stage at which the decision whether to consent to the blood alcohol test must be made); Hill v. State,

(Ala. Crim. App. 1978) (no constitutional or statutory right to consult with attorney before deciding whether to submit to chemical test); Wells v. State,

(1985); State v. Cichowski,

(1987); State v. Hoch,

(Fla. Dist. Ct. App. 1986); Rackoff v. State,

(2006); Matter of McNeely,

(Ct. App. 1990) (blood alcohol content testing is not critical stage in underlying criminal proceedings); People v. Okun,

, 14

held that a defendant possesses a State constitutional right to

1070 (1986); State v. Vietor,

(Iowa 1978); State v. Bristor,

(1984); State v. Jones,

(Me. 1983); Sites v. State,

(1984) (no right to counsel under Sixth Amendment, but due process under Fourteenth Amendment was violated); Holmberg v. 54-A Judicial Dist. Judge,

(1975); McDonnell v. Commissioner of Pub. Safety,

(Minn. 1991) (no right to counsel under Sixth Amendment but right to counsel exists under State Constitution); State v. Foster,

(Mo. Ct. App. 1998); State v. Armfield,

(1984), abrogated by State v. Reavley,

(2003) (clarifying right to counsel attaches at initiation of formal proceedings); State v. Petkus,

(1970), cert. denied,

(1971); State v. Leavitt,

(1987); State v. Howren,

(1984); Lakewood v. Waselenchuk,

(1994) (no Sixth Amendment right to counsel but violation of constitutional right to due process under Fourteenth Amendment); Flynt v. State,

, 588- 589 (Okla. Crim. App. 1973); Commonwealth v. McCoy,

(2009); Dunn v. Petit,

(1978); State v. Degnan,

(1991); State v. Frasier,

(Tenn. 1996); Forte,

; Law v. Danville,

(1972); Lombard,

; State v. Neitzel,

(1980); Mogard v. Laramie,

(Wyo. 2001). 13 Several State courts concluded there is no Sixth Amendment right to counsel before a breathalyzer test because the proceedings arising under the State's implied consent statute are civil in nature, involving license suspension or revocation. See, e.g., State v. Severino,

(1975) ("Actions taken under the implied consent law, however, are civil in nature, and hearings before a district judge, pursuant to statute, are in the nature of administrative proceedings"); Davis v. State,

(1977) ("In the case at bar this court has before it only issues which pertain to the administrative proceedings which occurred in the trial court"); Blow v. Commissioner of Motor Vehicles,

(1969) ("Blood tests are part of a civil and administrative proceeding and the petitioner was not entitled to counsel"); State v. Berry,

(1980). The Sixth Amendment is only applicable to criminal prosecutions and, therefore, does not apply.

15

counsel when deciding whether to submit to a breathalyzer test.14

See Sites v. Maryland,

(1984); Friedman v.

14 In Sites,

, the Maryland Court of Appeals explained that an individual faced with taking a breathalyzer test has the choice between two different sanctions and each sanction affects an important interest. Given this choice, the court thought it would be unreasonable to deny an opportunity to consult with counsel because it would affect the fairness of the proceedings.

Therefore, the Maryland court concluded that under art. 24 of the Maryland Declaration of Rights and the Fourteenth Amendment, a person must be given a reasonable opportunity to consult with an attorney before submitting to a chemical sobriety test.

We do not find the court's holding persuasive. We acknowledge that the decision whether to submit to a breathalyzer test is an important one. However, we also conclude that the defendant has rights that protect against the potential for unfair results. Additionally, in Motor Vehicle Admin. v. Deering,

(2014), the Court of Appeals of Maryland cast doubt on Sites's due process analysis insofar as Sites held that there is a right to counsel under the Fourteenth Amendment because of the Supreme Court's decision in Nyflot. The Maryland Court noted that the Supreme Court was advised of the due process analysis in Sites and dismissed for want of a substantial federal question.

at 630 n.22.

In Friedman v. Commissioner of Pub. Safety,

(Minn. 1991), the Supreme Court of Minnesota held that under art. I, § 6, of the Minnesota Constitution, there is a right to counsel when deciding whether to submit to a breathalyzer test. The court adopted the definition of "critical stage" articulated in Gerstein v. Pugh,

(1975), which states that critical stages are "those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel."

, quoting

By adopting this definition, the court concluded that deciding whether to submit to a breathalyzer is a "critical stage" and the right to counsel under the Minnesota Constitution applies.

We reject this argument because our courts, as previously stated in this opinion, have consistently interpreted the right to counsel under art. 12 as attaching at the time of formal proceedings. 16

Commissioner of Pub. Safety,

(Minn. 1991);

State v. Spencer,

(1988).

The majority of State courts that have concluded that a

defendant has a right to counsel when deciding whether to submit

to a breathalyzer test based their conclusion on a State

statutory right. See, e.g., Copelin v. State,

(Alaska 1983); State v. Vietor,

(Iowa 1978) (limited statutory right to counsel); Commonwealth

v. Bedway,

(Ky. 2015); State v. Foster,

(Mo. Ct. App. 1998); People v. Washington,

(2014); State v. Howren,

(1984) (limited statutory right to counsel); Kuntz v. State

Highway Comm'r,

(N.D. 1987); Lakewood v.

Waselenchuk,

(1994); State v.

Fitzsimmons,

(1980). No such statutory

right exists in the Commonwealth.

Similarly, the Supreme Court of Oregon held that "[a] person taken into formal custody by the police on a potentially criminal charge is confronted with the full legal power of the state, regardless of whether a formal charge has been filed." State v. Spencer,

(1988). Therefore, the court concluded that under art. I, § 11, of the Oregon Constitution, an individual has the right to a reasonable opportunity to consult with an attorney. Id. Again, we have consistently interpreted the right to counsel under art. 12 to attach after the initiation of formal proceedings. Therefore, we do not find this case persuasive. 17

The defendant also argues that a critical stage occurs when

a defendant's rights could be sacrificed or lost.15 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. See G. L. c. 90, § 24 (1) (f) (1). Although

there is no Sixth Amendment or art. 12 right to counsel when a

defendant is deciding whether to submit to a breathalyzer test,

there is no doubt that this is an important question with

various consequences depending on the defendant's decision.

However, the decision can be made by a defendant and does not

amount to a critical stage in the criminal process. Here,

before the defendant took the test, she was informed of her

rights to a telephone call under G. L. c. 276, § 33A, and to a

physician under G. L. c. 263, § 5A, and of the consequences of

refusing the breathalyzer test by the statutory rights and

consent form. She also was informed by the form that if she

submitted to the breathalyzer test and her blood alcohol level

was .08 or above, she would be "in violation of Massachusetts

15 The reported question asks only whether the decision to take a breathalyzer test is a critical stage of the criminal process to which the right to counsel attaches. The crux of the defendant's due process argument is similar. That is, she argues that the decision whether to submit to a breathalyzer is a critical stage. We have already concluded that the decision whether to submit to a breathalyzer is not a critical stage. Therefore, we do not reach the defendant's due process argument under the Fourteenth Amendment. 18

law and may face criminal penalties." These rights provide

adequate protection against the potential for unfair results.

We conclude, as we did in Brazelton, that there is no right

to counsel under the Sixth Amendment or art. 12 at the time an

individual is deciding whether to submit to a breathalyzer test.

Therefore, the answer to the reported question is "no." We

remand the case to the District Court judge for further

proceedings consistent with this opinion.

So ordered.