COMMONWEALTH vs. TIMOTHEA T. NEARY-FRENCH.

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

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liquor. [Note 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. [Note 3], [Note 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 United States Constitution and art. 12 of the Massachusetts Declaration of Rights, before deciding whether to submit to a breathalyzer test. [Note 5] After an evidentiary hearing, a District Court judge reported a question of law pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004), to the Appeals Court. We transferred the reported question to this court on our own motion. The reported question asks,

"Whether the 2003 amendment to G. L. c. 90, § 24, which created a new '.08 or greater' theory by which to prove an [operating while under the influence of intoxicating liquor] offense, where a breath test reading of .08 or greater is an

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element of the offense, now makes the decision by a defendant whether or not to take the breath test itself a critical stage of the criminal proceedings requiring that the defendant be advised of their right to counsel prior to making that decision, pursuant to art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments of the United States Constitution."

We answer the reported question in the negative.

1. Facts. The District Court judge made the following findings of fact. On November 28, 2012, at approximately 1:15 P.M., a woman signaled to Chief Stephen O'Brien of the Lenox police department while he was on routine patrol in Lenox. The woman reported that the defendant's vehicle was "bumping into" another vehicle. O'Brien approached the defendant, and based upon his observations, he suspected that she was operating while under the influence. He summoned Officer William Colvin for assistance. Colvin arrived at the scene to administer field sobriety tests to the defendant. Based on the defendant's performance on the field sobriety tests, as well as his observations, Colvin arrested the defendant for operating while under the influence.

The defendant arrived at the Lenox police station at approximately 1:31 P.M., and at approximately 1:38 P.M., was advised of the Miranda rights and began the booking process. At approximately 1:50 P.M., the defendant was presented with a "statutory rights and consent" form, which contained "[operating while under the influence] rights." The form described her right to a physician under G. L. c. 263, § 5A, [Note 6] her right to make a telephone call under G. L. c. 276, § 33A [Note 7], a request to submit to a chemical test under G. L. c. 90, § 24, and a notice to persons holding a commercial driving license. The defendant was advised by police

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officers of her statutory right to make a telephone call under G. L. c. 276, § 33A, and was asked by police to submit to a breathalyzer test at approximately 1:51 P.M. At first, the defendant refused to take the breathalyzer test, but she subsequently consented after three to four minutes and performed the test after the appropriate observation time. [Note 8] She completed the test at approximately 2:18 P.M. She had a blood alcohol level above .08.

2. Discussion. The defendant argues she has a right to counsel under the Sixth Amendment and art. 12 because, after the 2003 amendments to G. L. c. 90, § 24, and the creation of a "per se" violation theory, the decision whether to submit to a breathalyzer test is a critical stage in the criminal proceedings. The defendant asserts that because breathalyzer results can be used as the sole basis (with proof of operation on a public way) for a conviction of operating while under the influence of alcohol, the decision whether to submit to a breathalyzer test can have a significant impact on trial strategies and available defenses, rendering the decision a critical stage in the proceedings.

In Brazelton, 404 Mass. at 785, prior to the 2003 amendments, this court concluded that the decision whether to submit to a breathalyzer test was not a critical stage in the criminal process. We explained that the statutory right of access to a telephone within one hour upon arrival at the police station and the statutory right to be examined by a physician of the defendant's own choosing adequately protect a defendant's rights. Id. We also recognized the potential practical problems that a right to counsel at the breathalyzer test stage could present, such as the possibility of "stale and inaccurate" results due to a delayed breathalyzer test because counsel is unavailable. Id. We now revisit our holding in Brazelton to determine whether the creation of a "per se" violation theory under G. L. c. 90, § 24, transforms the decision whether to submit to a breathalyzer test into a critical stage in the criminal justice process. We conclude that, despite the creation of a "per se" violation theory, there is no constitutional right to counsel under the Sixth Amendment or art. 12 when deciding whether to submit to a breathalyzer test.

The Sixth Amendment and art. 12 provide criminal defendants the right to counsel at all "critical stages" of the prosecution. United States v. Wade, 388 U.S. 218, 224, 236-237 (1967);

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Commonwealth v. Woods, 427 Mass. 169, 174 (1998). In Kirby v. Illinois, 406 U.S. 682 (1972), the Supreme Court of the United States qualified the Sixth Amendment critical stage analysis by concluding that a right to counsel does not attach until "at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 684, 689-690 (plurality opinion) (right to counsel does not attach to postarrest, preindictment police station showup). The Supreme Court's holding in Kirby has been consistently adhered to in subsequent cases. See e.g., Montejo v. Louisiana, 556 U.S. 778, 786 (2009) ("Under our precedents, once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings"); Rothgery v. Gillespie County, Tex., 554 U.S. 191, 198 (2008); Moran v. Burbine, 475 U.S. 412, 428-429 (1986); United States v. Gouveia, 467 U.S. 180, 187-189 (1984). "[L]ooking to the initiation of adversary judicial proceedings, far from being mere formalism, is fundamental to the proper application of the Sixth Amendment right to counsel." Moran, supra at 431. The initiation of adversary judicial criminal proceedings is when "the government has committed itself to prosecute, and . . . the adverse positions of government and defendant have solidified" and when the "defendant finds himself . . . immersed in the intricacies of substantive and procedural criminal law." Kirby, supra at 689 (plurality opinion). The Supreme Court has held that postindictment lineups, postindictment interrogation by the State, plea hearings, and arraignments are critical stages where the Sixth Amendment right to counsel attaches. See Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012) (listing critical stages); Montejo, supra at 786 (interrogation by State); Iowa v. Tovar, 541 U.S. 77, 87 (2004) (plea hearing); Wade, supra at 236-237 (postindictment lineup). It is well settled that the right to counsel under the Sixth Amendment does not attach until the occurrence of critical stages at or after the initiation of adversary judicial proceedings, whether that be by formal charge, preliminary hearing, indictment, information, or arraignment. Kirby, supra. The breathalyzer test is administered postarrest but before the initiation of adversary judicial proceedings. Therefore, under the Sixth Amendment, there is no right to counsel at the time a

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defendant is deciding whether to submit to a breathalyzer test. [Note 9]

Similarly, under art. 12, our precedents consistently have held that the right to counsel "attaches at the time judicial proceedings are commenced." Commonwealth v. Anderson, 448 Mass. 548, 553-554 (2007). See Commonwealth v. Celester, 473 Mass. 553, 567 (2016); Commonwealth v. Caldwell, 459 Mass. 271, 287 (2011) ("formal adversary proceedings [had not] commenced against him, so his right to counsel under the Sixth Amendment or art. 12 had yet to attach"); Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 234-235 (2004) ("The right to trial counsel under art. 12 attaches at least by the time of arraignment"); Commonwealth v. Patterson, 432 Mass. 767, 776 n.10 (2000) ("The defendant's Sixth Amendment and art. 12 rights to the effective assistance of counsel did not attach until . . . arraignment"); Commonwealth v. Griffin, 404 Mass. 372, 374 (1989) ("a person's right to assistance of counsel under both the Sixth Amendment . . . and art. 12 . . . attaches only from the time that adversary judicial proceedings have been initiated"); Jiles v. Department of Correction, 55 Mass. App. Ct. 658, 665 (2002). Specifically, "[t]his court has held, '[t]here is no authority for the proposition that the right to counsel under the Sixth and Fourteenth Amendments . . . or under art. 12 . . . arises prior to arraignment, even though a criminal complaint and an arrest warrant have issued.'" Commonwealth v. Beland, 436 Mass. 273, 285 (2002), quoting Commonwealth v. Ortiz, 422 Mass. 64, 67 n.1 (1996). See Commonwealth v. Jones, 403 Mass. 279, 286 (1988). The right to counsel under art. 12 attaches at a motion to suppress hearing, a probable cause hearing, and sentencing. Lavallee, supra at 235 n.13 (probable cause hearing and

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sentencing); Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 510-511 (2011) (motion to suppress hearing). Because the decision whether to submit to a breathalyzer test takes place before the initiation of formal judicial proceedings, we conclude that there is no right to counsel at the breathalyzer stage under art. 12.

We acknowledge that the decision whether to submit to a breathalyzer test is an important tactical decision for the defendant. See Commonwealth v. McCoy, 601 Pa. 540, 543, 546 (2009). This decision, however, occurs at the evidence gathering stage, before the Sixth Amendment or art. 12 right to counsel attaches. The Supreme Court in Wade, 388 U.S. at 227-228, explained that "preparatory steps, such as systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, [and] hair . . . are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial." We cannot say that the defendant is "immersed in the intricacies of substantive and procedural criminal law" when deciding whether to submit to a breathalyzer test. Kirby, 406 U.S. at 689 (plurality opinion). The term "critical stage" is a term of art and only refers to actions and events postindictment or arraignment. The decision whether to submit to a breathalyzer is an important decision, but it is not a critical stage because the decision occurs before indictment and arraignment.

The defendant cites to a variety of cases from different jurisdictions to support her argument. We do not find these cases persuasive. [Note 10] Our decision is in line with the vast majority of

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jurisdictions that have addressed this issue. The Supreme Court of the United States in Nyflot v. Minnesota Comm'r of Pub. Safety, 474 U.S. 1027, 1029 (1985), addressed whether a defendant had a Sixth Amendment right to counsel before deciding whether to consent to a blood alcohol test. Id. at 1029. Below, the Minnesota Supreme Court had concluded that there was no right to counsel under the Sixth and Fourteenth Amendments. Id. at 1028-1029. See Nyflot v. Commissioner of Pub. Safety, 369 N.W.2d 512, 515-517 (Minn. 1985). The United States Supreme Court dismissed the appeal for want of a substantial Federal question. [Note 11] Nyflot, supra at 1027. The majority of State courts have held that a defendant's Sixth Amendment right to counsel does not attach prior to the defendant's decision whether to submit to a breathalyzer test. [Note 12], [Note 13] Only three State courts have held that a defendant

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possesses a State constitutional right to counsel when deciding whether to submit to a breathalyzer test. [Note 14] See Sites v. Maryland,

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300 Md. 702, 717-718 (1984); Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 832 (Minn. 1991); State v. Spencer, 305 Or. 59, 74-75 (1988).

The majority of State courts that have concluded that a defendant has a right to counsel when deciding whether to submit to a breathalyzer test based their conclusion on a State statutory right. See, e.g., Copelin v. State, 659 P.2d 1206, 1208 (Alaska 1983); State v. Vietor, 261 N.W.2d 828, 831-832 (Iowa 1978) (limited statutory right to counsel); Commonwealth v. Bedway, 466 S.W.3d 468, 474 (Ky. 2015); State v. Foster, 959 S.W.2d 143, 146 (Mo. Ct. App. 1998); People v. Washington, 23 N.Y.3d 228, 232 (2014); State v. Howren, 312 N.C. 454, 455-456 (1984) (limited statutory right to counsel); Kuntz v. State Highway Comm'r, 405 N.W.2d 285, 287 (N.D. 1987); Lakewood v. Waselenchuk, 94 Ohio App. 3d 684, 688 (1994); State v. Fitzsimmons, 94 Wash. 2d 858, 858 (1980). No such statutory right exists in the Commonwealth.

The defendant also argues that a critical stage occurs when a defendant's rights could be sacrificed or lost. [Note 15] There is no right at risk of being sacrificed while deciding whether to submit to a

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breathalyzer test because the defendant already consented to the breathalyzer test by virtue of driving within the Commonwealth. See G. L. c. 90, § 24 (1) (f) (1). Although there is no Sixth Amendment or art. 12 right to counsel when a defendant is deciding whether to submit to a breathalyzer test, there is no doubt that this is an important question with various consequences depending on the defendant's decision. However, the decision can be made by a defendant and does not amount to a critical stage in the criminal process. Here, before the defendant took the test, she was informed of her rights to a telephone call under G. L. c. 276, § 33A, and to a physician under G. L. c. 263, § 5A, and of the consequences of refusing the breathalyzer test by the statutory rights and consent form. She also was informed by the form that if she submitted to the breathalyzer test and her blood alcohol level was .08 or above, she would be "in violation of Massachusetts law and may face criminal penalties." These rights provide adequate protection against the potential for unfair results.

We conclude, as we did in Brazelton, that there is no right to counsel under the Sixth Amendment or art. 12 at the time an individual is deciding whether to submit to a breathalyzer test. Therefore, the answer to the reported question is "no." We remand the case to the District Court judge for further proceedings consistent with this opinion.

So ordered.