CBS Boston

Should I Take the Breathalyzer in Massachusetts?

March 8, 2012

As a Massachusetts dui/oui defense attorney, the most common question I hear is:

Should I take the breath test?

Unfortunately, there is no one-size-fits-all answer to this question. If you take and fail the breath test (a blood alcohol concentration of .08 or higher), your license will be suspended for 30 days. At the police station, you are informed that refusing to take the breath test will result in an automatic license suspension of 6 months if this is your first offense (or 3 years if under 21 years old), 3 years if this is your second offense, 5 years if this is your third offense, and a lifetime loss of license if this is your fourth offense. The longer license suspension may encourage you to submit to the breathalyzer, which is the intent behind the law. However, what the police do not tell you, is that without a failed breath test to use against you in court, the prosecution might have a very tough time proving that you were actually impaired by alcohol.

In Massachusetts, there are two ways that the prosecution can prove that you were “under the influence of alcohol” while operating a motor vehicle on a public way. This first is the “per se” violation, where the prosecution just needs to prove that your blood alcohol concentration was .08 or higher. A valid breath test makes for a very strong case against you, assuming that it was administered properly and there are no other legitimate factors that would have altered the results. The second way to prove that you were “under the influence” is by testimony of the arresting officer about your demeanor, appearance, and performance on the field sobriety tests, the testimony of and any other percipient witnesses, circumstantial evidence, and physical evidence tending to show that your ability to operate a motor vehicle safely was diminished due to alcohol consumption. However, there are MANY ways that a skilled OUI defense attorney can attack this theory of impairment. Without a breath test, and without any other aggravating factors (car accident, belligerent conduct, incriminating statements, etc.), you probably have a legitimate case worth fighting. If you are found NOT GUILTY, there is also a presumption that your license be reinstated if it is still suspended for refusing the breath test, unless the prosecution can demonstrate that reinstatement would pose a danger to the community.

In my opinion, it is usually not a good idea to take the breath test in Massachusetts. Even just a few drinks can lead to a reading of .08 or higher. It is in your best interest NOT to help the prosecution build their case against you. In fact, if you refuse to take the breath test or field sobriety tests, or if you refuse to do both, the fact that you were asked and subsequently chose to refuse these tests CANNOT BE USED AGAINST YOU IN COURT! As far as the jury is concerned, you were never even offered the chance to take these tests. By helping to set yourself up for an acquittal on an OUI charge, you are helping to avoid the significant consequences of a conviction or a Continuance Without a Finding.

On the other hand, if the only thing that matters to you is your driver’s license, and you can live with all of the other consequences of a plea deal or conviction (fines, fees, probation supervision, alcohol education classes, a criminal record, future collateral consequences, etc), then taking the breath test is one way to avoid a minimum 6 month license suspension.

If you have been charge with Operating Under the Influence of Alcohol in Massachusetts, or any other criminal offense, contact my office for your free initial phone consultation:


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