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Mass. High Court Weighs Whether Drivers Can Call A Lawyer Before Taking A Breathalyzer Test03:48
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A police officer administering a Breathalyzer to a driver. (Pixabay)
A police officer administering a Breathalyzer to a driver. (Pixabay)
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Do Massachusetts drivers have a constitutional right to call an attorney before taking a breathalyzer test? That’s the question that was before the state’s highest court on Thursday.

Under Massachusetts law, if a breathalyzer test finds that a driver has more than .08 percent alcohol in his or her blood, that's enough for a drunk driving conviction.

Attorney Elizabeth Quigley explained the consequence of that to the Supreme Judicial Court, and prompted a joke from Justice Margot Botsford.

"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," she told the justices. "They could be 'as sober as the proverbial judge,' fail the breath test, get .08 or above, and be solely convicted on that basis," said Quigley.

"Let's hope the judges are a little bit under that," Botsford said to laughter.

 "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."

Attorney Elizabeth Quigley

Quigley represents a woman charged with operating under the influence in Lenox. She's trying to suppress the breath test result because her client did not get a chance to call an attorney before taking the test.

The Berkshire County District Attorney's office argues that the Legislature did not intend to give drivers the right to call a lawyer before taking the test.

Justice Barbara Lenk asked Quigley how the right to counsel would work.

"So somebody could waive the right to counsel? Would you have to have something like Miranda first?" Lenk asked. "How would this work?"

Among the Miranda rights, the rights a person arrested must be told before being questioned by police, is the right to an attorney. Quigley explained that a defendant could easily be told of another right during the booking process, which she says can take up to an hour.

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"And that is: You have the right to consult with an attorney before you make the decision to take a breath test," Quigley said. "It's done under the Sixth Amendment."

The Sixth Amendment to the U.S. Constitution guarantees the right to counsel. Quigley told the Chief Justice Ralph Gants a defendant would also have the right under the Massachusetts Declaration of Rights.

It was clear the justices mostly wanted to hear from Quigley. Out of the 36 minutes allotted to oral arguments, they spent 27 asking her questions.

Assistant Berkshire County District Attorney Joseph Coliflores got just nine minutes.

Justice Geraldine Hines asked Coliflores if there might not be strategic decisions before the arraignment for which a defendant should have a lawyer.

"The arraignment is not necessarily a bright line. I mean, here, if the person agrees to the test and the reading is above [.08], that's a strategic decision that is going to mean that the person is likely found guilty," Hines said. "There's no other chance to even confer with an attorney if you agree and your reading is [.08] or above. What's the point?"

Gants pressed Coliflores on the fact that police do not warn defendants of the legal consequences of failing a breathalyzer test.

"The fact of the matter is, if you do take the breathalyzer test and you blow above a .08, you're going to be convicted of a crime. They don't tell you that," Gants said.

"Not necessarily, your honor," Coliflores said. "As the defendant has eloquently put it, she claims that the .08 per se violation is the only evidence that can lead to a conviction. 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. The .08 itself, standing alone, does not lead to a conviction."

Three of the justice are retiring this summer, so a decision is likely by June.

This article was originally published on May 05, 2016.

Fred Thys Twitter Reporter
Fred Thys reported on politics and higher education for WBUR.

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