Since the United States Supreme Court’s landmark decision in Gideon v. Wainwright, 372 U.S. 335 (1963), the right to assistance of counsel in criminal proceedings has been fundamental in protecting due process rights of criminal defendants. However, the Supreme Court has repeatedly rejected arguments that the right to counsel should extend to pre-charge proceedings such as questioning by police. The Court has consistently limited the Sixth Amendment right to counsel to proceedings occurring after a formal charge has been brought, as it did in Moran v. Burbine, 475 U.S. 412 (1986), where it upheld a defendant’s conviction although police concealed from him that an attorney was attempting to reach him before he was questioned and confessed.
In Comm. v. Brazelton, 404 Mass. 783 (1989), the Supreme Judicial Court held that there was no right to counsel under Art. 12 of the Massachusetts Declaration of Rights when deciding whether to submit to a breathalyzer test, and adhered for Art. 12 purposes to the federal Sixth Amendment limits: the right to counsel under the state constitution, as under the federal constitution, comes into being only when formal criminal proceedings commence against a person in court. In Comm. v. Neary-French, (No. SJC-12057, August 16, 2016), the SJC revisited the issue. The defendant in Neary-French argued that an amendment to the Massachusetts OUI statute subsequent to Brazelton, which makes it a per se crime to operate a motor vehicle with a blood alcohol content exceeding .08, made the decision whether to submit to a breathalyzer test a critical stage in a criminal prosecution. If that were the case, Art. 12 would require the assistance of counsel in making the decision. The Court rejected the argument and reaffirmed that Art. 12, like the Sixth Amendment, assures the assistance of counsel only after formal charges are brought.
The SJC in Neary-French noted that the majority of state courts had rejected the argument under their state constitutions. Several states have statutory provisions for the assistance of counsel in deciding whether to take a breathalyzer test, and only three states, Maryland, Minnesota and Oregon, have held there is a state constitutional right to counsel in making the decision. In a footnote the SJC rejected those courts’ reasoning (variously, that the decision could hamper the eventual defense of a criminal case, that the decision is potentially one between two penalties (loss of license for refusal, and criminal prosecution if the test is positive), and that the person at that point is confronted with “the full legal power of the state”).
Where does that leave someone arrested in Massachusetts for OUI? As the SJC noted in Brazelton, such a person has a statutory right to make a telephone call, and to be independently examined by a doctor of his or her choosing. The right to a phone call theoretically allows the person to consult with a lawyer before making the decision. In addition, breathalyzer tests are administered at police stations, and almost certainly the person is under arrest at that point. The Fifth Amendment has thus attached, and usually Miranda warnings have been given (as they were in this case). So the person has at least been told that he or she has the option to take or refuse a breathalyzer, that he or she has a right to consult with an attorney before answering questions and that he or she has the right to make a telephone call. While this is far from obligating police to explicitly afford the person an opportunity to consult with counsel before deciding whether to take a breathalyzer, it opens the possibility to consult with counsel before making the decision. A person who has been arrested late at night and is possibly less than fully rational, or who is unsophisticated about criminal proceedings may not take the opportunity. Or if they do, they may not be able to reach an attorney for advice. The decision is a critical one, given the fact that a result of .08 or higher is sufficient, without more, to establish a crime. But while the decision is critical, it is not, in Massachusetts, a “critical stage” in criminal proceedings, and there is no right to counsel in making the decision.
 The SJC also noted in passing that the Supreme Court recently rejected a Fourth Amendment challenge to warrantless breathalyzer tests, Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), relying largely on search incident to arrest doctrine.
 Because the actual breathalyzer test is not “testimonial”, Schmerber v. California, 384 U.S. 757 (1966), there is no requirement that Miranda warnings be given before the test, but generally they will have been. The fact that such physical tests are not “testimonial” also eliminates an argument that they are “involuntary” statements, coerced by the prospect of license loss, as grounds for suppression