Consequences of Breath Test Refusal and Failure- Massachusetts

If you “fail” the breath test, meaning your blood alcohol concentration was greater than .08 (unless under 21, in which case the limit is .02), your license will be suspended for 30 days.

If you were arrested for OUI/DUI/DWI and refused to take the breath test, the Massachusetts RMV will suspend your license immediately, completely independent of what happens in your criminal case. The breath test refusal suspension period will based upon 2) whether you are over 21 years old, and b) whether you have prior OUI/DUI/DWI offenses.

• BT Refusal- 1st offense: 180 days (unless under 21, see below)
• BT Refusal- 2nd offense: 3 years
• BT Refusal- 3rd offense: 5 years
• BT Refusal- 4th offense: Lifetime suspension

The RMV suspension for a breath test refusal will start BEFORE any license suspension from the court for your case begins. In other words, the suspensions run consecutive, or one after the other.

For example, if you refused the breath test upon your arrest for a 2nd-offense OUI charge, you face an automatic 3 year license loss from the RMV. If convicted of the offense in court, you face an ADDITIONAL 2 year license loss, for a total of a 5 year license loss. You are not eligible to apply for a hardship license for at least 1 year into the 2 year license loss from the court. Since that 2 year license loss does not start until after the 3 year breath test refusal suspension, you cannot apply for a hardship license until 4 years into that 5 year total suspension. Further, in order to apply for your hardship after 4 years, or for your full license after the 5 year suspension, you must first install the interlock ignition device in your car before consideration.

• If you are under 21 years old, a breath test “failure” is any reading above a .02 (which can be less than one drink), also resulting in a 30 day license suspension. In addition, your license will be suspended for 180 days under the Junior Operator Law.** This 180 day JOL suspension may be waived by showing proof of entry into an alcohol education program.
• If you are under 21 years old and refuse the breath test on an OUI-1st offense, your license will be suspended for 3 years, plus the 180 day suspension under the Junior Operator Law.** The breath test refusal suspension period for 2nd and subsequent offenses will be the same as for adults 21 and over, with the additional 180 days under the Junior Operator Law.**
• If your case was dismissed or you were found Not Guilty and you are under 21, your license will still be suspended for 180 days under the Junior Operator Law.** In order to have this 180 day suspension waived, you must enroll in a Driver’s Alcohol Education Program.
• If you plead guilty, receive a CWOF or are found guilty at trial, and you are under 21, your license will be suspended for 210 days for that finding. This 210 day suspension begins after all other suspensions (30 days for breath test failure OR 3 years for breath test refusal, AND 180 days under Junior Operator Law.** The 180 day suspension may be waived upon enrollment in a Driver’s Alcohol Education Program).

** If you are under 18 years old, the 180 day suspension under the Junior Operator Law becomes 1 year. 180 days of that 1 year suspension may be waived by enrolling in the Driver’s Alcohol Education Program.

Contact my office if you've been charged with a Massachusetts OUI or any other criminal offense. I am available 24 hours a day, 7 days a week, for your free initial phone consultation.

50 Milk St 16th Floor
Boston, MA 02109
Phone: (617) 830-2188