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No Right to a lawyer prior to deciding to take a Breath Test

When is a person being investigated of a crime entitled to a lawyer?

The determination of whether someone being accused of a crime is entitled to a lawyer depends on whether the court determine that the prosecution is at a critical stage in the process. The United States Supreme Court in a case called Kirby v. Illinois, ruled that the Sixth Amendment right to counsel does not attach until the state beings the adversarial process against an individual. The Court defined this as a formal charge, preliminary hearing, indictment or arraignment. The Massachusetts Supreme Judicial Court, interpreting Article 12 of our State Constitution declined to adopt a more expansive view of when the adversarial process beings. The Court found that because the decision whether to take a breath test arises before a formal complaint it issued, that there is no right to counsel under the Sixth Amendment.

The SJC stated that the decision whether to take or refusal a breath test is an important tactical decision, but that because this decision occurs at the evidence gathering stage it is not a critical stage in the process. The Court affirmed that its decision in Commonwealth v. Braelton is still good law despite the change to Massachusetts OUI laws with the per se offense.

Defense lawyers argued that with the amendment to Melanie’s Law in 2003 creating the per se violation for a breath test over .08 that this created a critical stage in the prosecution entitling a defendant to a lawyer. To read more about this issue there was a good summary of the case by Fred Thys.

Attorney DelSignore hands drunk driving cases thought Massachusetts and has a wealth of information on his website about Massachusetts OUI Laws.  He can be reached on his cell phone at 781-686-5924.

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