What To Know About Taking a Breathalyzer Test
The first step in an arrest for Operating Under the Influence (OUI), Driving While Impaired (DWI), or Driving Under the Influence (DUI) in Massachusetts is consenting to a Breathalyzer test, which determines a person’s Blood Alcohol Content (BAC). But we’ve all heard of cases of people refusing to take the Breathalyzer test under the assumption that if they don’t give the evidence, it can’t be used against them. But is this wise?
Everyone’s circumstance is different, and you might be asking yourself, should I consent to the breathalyzer or should I refuse? Vincent Tofani, Director of Parker Scheer’s Criminal Defense Practice Group explains what to know about breathalyzer tests in Massachusetts.
What if I Take a Breathalyzer and Blow Over the Limit?
If your blood/alcohol level is at or over the legal 0.08 limit in Massachusetts, your license will automatically be suspended for 30 days. Depending on your driving history, it is possible to apply for a hardship license during that time in order to get to and from work if necessary.
Your case may then go to trial. If you’re convicted, you could face a hefty fine and could even go to jail for up to two and half years.
What if I Refuse to Take a Breathalyzer?
If you refuse to take the test and this is your first offense, your license is automatically suspended for 180 days (six months) and, in Massachusetts, your vehicle can be impounded for up to 24 hours. (See chart below for suspensions for repeat violations.) Because you refused the test, you are not entitled to apply for a hardship license at all.
License Suspensions for Refusal to take a Breathalyzer in Massachusetts
| OVER 21 | |
| No prior OUI offenses | 6 months |
| 1 prior offense | 3 years |
| 2 prior offenses | 5 years |
| 3+ prior offenses | LIFETIME |
|
BETWEEN 18 – 21 |
|
| No prior OUI offenses | 3 years + 6 months |
| 1 prior offense | 3 years + 6 months |
| 2 prior offenses | 5 years + 6 months |
| 3+ prior offenses | LIFETIME |
|
UNDER 18 |
|
| No prior OUI offenses | 4 years |
| 1 prior offense | 4 years |
| 2 prior offenses | 6 years |
| 3+ prior offenses | LIFETIME |
You are entitled to challenge this refusal suspension within 15 days, but there are only three reasons you may do so:
- there were no reasonable grounds for the OUI arrest,
- you were not arrested, or
- you did not, in fact, refuse the Breathalyzer.
If you can effectively prove your innocence, the refusal suspension will be rescinded.
However, even if you refuse the Breathalyzer, there are other pieces of evidence that may be used to bring a OUI/DUI charge, including witness testimony, field sobriety tests, and police officer observations. In fact, in certain instances, the field sobriety tests may be all they need for a DUI arrest.
And if you think you can wait until the officer can obtain a warrant to compel you to take the test in the hope that you will sober up by then, think again. Warrants can be obtained in minutes via mobile devices, and refusing a court-ordered test can result in serious contempt charges.
If you have been charged with an OUI offense it is important to call an experienced attorney right away. The laws are complex and are subject to change and hiring an attorney to represent you on an OUI charge can make all the difference.
About the Author
Vincent A. Tofani serves as Director of Parker Scheer’s Criminal Defense Practice Group.
He is a member of the Massachusetts Association of Criminal Defense Lawyers and has successfully represented hundreds of individuals charged with OUIs and a wide variety of criminal offenses in both state and federal courts throughout the Commonwealth of Massachusetts.
