If I was not informed that I could obtain an attorney before providing a field sobriety test and breathelizer , can that help in my defense ?
Possibly. If you have a lawyer, you should speak to him or her about this. If you don't have a lawyer then you should hire one to represent you as this question requires an in-depth conversation.
Under the current state of the law in Massachusetts the police are not required to inform a suspect in a dui case that he/she has the right to consult with a lawyer before submitting to a field sobriety test. A person can simply refuse to perform the tests, but the police are not required to tell a suspect that he/she has the right to consult with a lawyer before submitting to a field sobriety test. With reference to a breathalyzer test in the police station (not the portable test in the field), the police are required to advise a person under arrest for dui that he/she has the right to a comparison test at his/her own expense and the police are required to advise what the consequences of refusing to take a breathalyzer test are (loss of license from 180 days to life). In most instances the breathalyzer is offered and either taken or refused after Miranda rights are administered at the booking desk. You need to discuss the details of this with your lawyer and you need to see the booking video if it exists.
You aren't entitled to be informed about your right to an attorney before being asked to submit to field sobriety tests. You should discuss the details with your own lawyer.
Miranda warnings, including being informed of your right to speak to an attorney, apply only after arrest.
At the initial stop of a Motor Vehicle, the officer's suspicion that you were drinking will lead him to ask if you would voluntarily consent to a series of Field Sobriety Tests (FST). He should tell you that you have the right to refuse. At this point he is investigating a potential crime. Only after you refuse or fail the tests are you placed under arrest. And only then does Miranda come into play. Back at the station, some officer will inform you of your rights under Miranda at the time of booking/fingerprinting/photographs, all before they get to the part where you are asked to take the BA test.
I heard that some attorney in western Mass. is taking this issue up. The theory is that both the FST and the BA is incriminating evidence that you are giving up without the ability to consult with an attorney first. It will be interesting to see how it turn's out. But for now, the answer is No.
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