On August 15, 2016, the Supreme Judicial Court answered in the negative a question reported to it by a District Court judge, namely: does the right to consult with an attorney, as provided by the Sixth Amendment to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights, attach when an individual is in the police station deciding whether to take a breath test or not?

The case was typical: a person was arrested by the police on suspicion of operating a motor vehicle while under the influence of liquor.  She was taken to the police station and booked.  She was then advised of her right to a telephone call and her right to be examined by a physician of her choice within a reasonable period of time.  Finally, she was asked to perform a chemical breath test, and informed that if she refused to take the breath test, her license would be suspended for 180 days.  She was also informed that if she took the test and failed, her license suspension would be only 30 days.  Ultimately, she was charged in District Court with OUI.

The District Court asked the Supreme Judicial Court if a person who is forced to make this difficult decision at the police station has a right to consult with an attorney first, in light of the 2003 amendments to the OUI law that now make a .08% or greater breath test result a per se violation of the law.  Technically, the question was whether the decision constitutes a “critical stage” of the proceedings, in light of the amendments.

The SJC determined that the “critical stage” in criminal proceedings that gives rise to the right to consult with an attorney does not begin until either indictment or arraignment.  Because no criminal case has yet commenced by the time an individual is making the decision about the breath test, therefore the decision is not a “critical stage” in criminal proceedings, and no right to a lawyer arises.

The SJC recognized that the decision, “should I take the breath test?” is “an important tactical decision,” but nevertheless held that an individual is adequately protected against unfair results by way of the information that the police are required to give regarding the consequences of taking or not taking the test.

Incidentally, the decision depends on several factors, namely:

  • how likely are you to pass the test if you take it?
  • do you need your license to get to work?
  • is there overwhelming evidence of intoxication such that a conviction could be had even absent a breath test result?
  • have you previously been convicted of OUI or previously been ordered to take an OUI class?
  • do you have a CDL license?

Having an attorney to advise you during this decision would be very helpful, but it is now settled law that there is no right to legal advice until you are charged.

Attorney Kevin D. Quinlan

The Law Offices of Kevin D. Quinlan

2 South Main Street, Suite 201

P.O. Box 248

Uxbridge, MA  01569

(508) 723-6384


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