Commonwealth v. Neary-French (Lawyers Weekly No. 10-126-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   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.          SPINA, J.  In Commonwealth v. Brazelton, 404 Mass. 783, 785 (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 lieu 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, 448 Mass. 809, 811 (2007).  This is known as a “per se” violation.[3],[4]  Id. at 810. 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 […]

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