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OUI suspects aren’t entitled to Miranda warning before breathalyzer, SJC rules

Police do not have to give a Miranda warning to suspected drunk drivers before they take a breathalyzer test, the state’s highest court ruled Monday in a decision that left intact a 27-year-old legal precedent.

The Supreme Judicial Court ruled unanimously that the chemical breath test is not a “critical part” of the criminal investigation of a suspected drunk driver and, as such, does not trigger the protections against self-incrimination enshrined in the state and federal constitutions.

The court left intact the legal precedent in effect since a 1989 SJC ruling known as Commonwealth v. Brazelton. In that ruling, the SJC said asking a driver to take a chemical breath test did not trigger self-incrimination concerns, and police did not have to provide Miranda warnings.


Timothea Neary-French was arrested by Lenox police on Nov. 28, 2012. While in custody at the police station, she agreed to a breathalyzer test, which showed her blood alcohol level was above .08, court records show.

The attorney for the Western Massachusetts woman argued that 2003 amendments to the state’s drunken driving laws that made breath test results of .08 or higher automatic proof of drunken driving changed the legal landscape and triggered new constitutional protections.

Writing for the court, now-retired justice Francis X. Spina said the written notice police give to suspected drunk drivers who are deciding whether to take a breathalyzer is warning enough, and Miranda warnings are not required.

“We acknowledge that the decision whether to submit to a breathalyzer test is an important tactical decision for the defendant,’’ Spina wrote. “This decision, however, occurs at the evidence gathering stage, before the Sixth Amendment or [Massachusetts Constitution Article 12] right to counsel attaches . . . There is no right to counsel at the time a defendant is deciding whether to submit to a breathalyzer test.’’


John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.