In 1989, the Supreme Judicial Court of Massachusetts decided
in Commonwealth v. Brazelton, 404
Mass. 783, 785 (1989) that the right to an attorney, a right we enjoy under the
6th and 14th Amendments to the United States Constitution
as well as under article 12 of the Massachusetts Declaration of rights, is not
afforded to a Defendant who is faced with the decision of whether to take a
breathalyzer test.
Fast forward to 2003, Massachusetts law was amended to make
driving with a BAC of .08 or greater a per se violation of the law rather than
a permissible inference as the statute prescribed in years prior. This left the
question: Is a decision to take the breath test a tactical one that you should
be able to consult an attorney about. I would think yes. The SJC does not
agree.
On August 15, 2016, the court revisited their decision in Brazelton in light of the 2003
Amendments in Commonwealth v. Neary-French,
SJC-12057 (2016). The SJC found that the right to counsel attaches at all
critical stages of prosecution and although this may be a tactical decision,
the right will not be afforded at this stage.
Moral of this story? Attorneys cannot make this decision for
you but I would recommend that you DO NOT submit to a breathalyzer test.
