Breathalyzer Tests and Refusals in Massachusetts

If you submit to a Breathalyzer Test, you should know that the legal-limit in Massachusetts for Blood-Alcohol Content (BAC) is a reading of 0.08%, which is relatively low.  For many, studies have shown that even one beer or two can cause someone to fail the Breathalyzer Test if taken within an hour of the last drink.

However, you do have the right to refuse to submit to a Breathalyzer when stopped for an OUI / DUI. When faced with the decision of whether or not to submit to a breathalyzer test, you should know that there will be a mandatory loss of your Massachusetts Driver's License if you refuse the take the test. The penalties of any driver's license suspension can be extremely severe, especially if you have previously been convicted or received a "CWOF" on a prior drunk driving charge. The Massachusetts Legislature has created a statutory scheme with severe penalties for breathalyzer refusals in an effort to deter people from drinking and driving, but also obtain evidence against those suspected of drunk driving who do submit to the breathalyzer test. Accordingly, you should weigh any loss of your Driver's License against the possibility of beating the criminal case if you refuse.

In cases where you might fear blowing a BAC reading greater than 0.08% and jeopardize any chance of beating your case, you may decide to refuse the Breathalyzer Test with the chance of being acquitted at your criminal trial.

If, however, you elect not to submit to a Breathalyzer Test, that refusal cannot be used at trial in the criminal prosecution against you, but your license will be suspended for simply refusing the Breathalyzer Test.  The length of suspension of your Massachusetts Driver's License depends on whether you have any prior refusals, and if so, how many.

In some cases, where the person is not able to give a sufficient breath for a breathalyzer reading, the police will consider this a "refusal".  Recent criminal litigation in these circumstances, however, provides that because the person initially consented to a breathalyzer test, the fact that he was not able to submit a proper sample for a reading may be admissible at trial.

If you elect to submit to a Breathalyzer Test and fail, or blow a reading of 0.08% or higher, your license will automatically be suspended for 30 days.  Persons should also be aware that there are no Hardship Licenses available for Breathalyzer Test Refusals.

In addition, the passing of "Melanie's Law" by the Massachusetts State Legislature in 2005 mandated that the operator's car will be impounded for up to 12 hours upon a Breathalyzer Test Refusal.

Massachusetts law now further mandates that, for driver's over the age of 21, your Driver's License will be suspended if you refuse the Breathalyzer Test for:

  • No Prior OUI Offenses:               180 days
  • 1 Prior OUI Offense:                    3 year suspension
  • 2 Prior OUI Offenses:                  5 year suspension
  • 3 or More Prior OUI Offenses:   LIFETIME suspension
For Massachusetts driver's between the ages of 18 and 21, your Driver's License will be suspended if you refuse the Breathalyzer Test for:
  • No Prior OUI Offenses:                3 years plus 180 days
  • 1 Prior OUI Offense:                     3 years plus 180 days
  • 2 Prior OUI Offenses:                   5 years plus 180 days
  • 3 or More Prior OUI Offenses:     LIFETIME suspension
For Massachusetts driver's under the age of 18, your Driver's License will be suspended if you refuse the Breathalyzer Test for:
  • No Prior OUI Offenses:                4 years
  • 1 Prior OUI Offense:                     4 years
  • 2 Prior OUI Offenses:                   6 years
  • 3 or More Prior OUI Offenses:     LIFETIME suspension
Additionally, a driver who fails a breathalyzer test and is then convicted of OUI/DUI is subject to the following loss of license consequences: Drivers without any prior OUI convictions who are convicted of a 1st offense OUI will face a maximum 1 year suspension; drivers with 1 prior OUI conviction will face a maximum 2 year suspension; drivers with 2 prior OUI convictions could lose their license for a maximum of 8 years; drivers with 3 prior OUI convictions could lose their license for a maximum of 10 years; and those with 4 prior OUI convictions would lose their driver's license for life.

Can your driver's license be restored?

If you are convicted after trial of OUI/DUI after having refused the breathalyzer, Massachusetts General Laws chapter 90, section 24(1)(c) affords you a mechanism to apply for restoration of your driver's license. This provision permits you to apply for a limited hardship or "cinderella" license. This section, however, provides that persons who have had their driver's license suspended for life are not eligible for a hardship license.

Additionally, a driver who refused the breathalyzer but is then acquitted of his case may apply for reinstatement of his license. Massachusetts General Laws chapter 90, section 24(1)(f)(1) states:

"...the defendant may immediately, upon entry of a not 
 guilty finding or dismissal of all charges under this 
 section...and in the absence of any other alcohol related
charges pending against [him], apply for and be immediately
granted a hearing before the court which took final action on
the charges for the purpose of requesting restoration of
[his/her] license. At [the] hearing, there shall be a rebuttal
presumption that [the] license be restored, unless the 
Commonwealth shall establish, by a fair and preponderance
of the evidence, that restoration of said license would likely
endanger the public safety."

This avenue for relief is not unlimited. A driver-defendant could and should move immediately for restoration of his license if he is acquitted. The statute doesn't let you go back for multiple and repeated requests if you are not successful on your first request. In other words, a driver-defendant is granted an opportunity to move for restoration of his license immediately upon an entry of a not guilty or dismissal of the charges - but it does not afford you a second opportunity at a later date.

The reasoning behind this is so the application for restoration of the person's license after an acquittal or dismissal is heard before the court/judge that took final action on the charges, based on the known circumstances at the time of the persons acquittal or dismissal. In this way, the judge who presided over the defendant's OUI proceeding is then in the vest position to determine whether the restoration "would likely endanger the public safety" based on the facts known at the time of the acquittal/dismissal, and in the context of the Commonwealth's evidence.

At the end of the day, nobody plans to drink excessively and then drive; and certainly you don't want or expect to get pulled over and arrested for an OUI/DUI - but people sometime do make errors in judgment. For this reason, every driver really should be aware of these potential consequences, particularly loss of license consequences for BAT refusals and for conviction of OUI/DUI.

***Persons who have been charged with OUI/DUI and have submitted to a breathalyzer test should be aware that there are current challenges to the reliability of the Alcotest 9510 breathalyzer machines. There are over thousands of DUI cases across the state that are potentially affected by possible unreliable breathalyzer results. If your case involved a breath test, you need to be apprised of the current status of this litigation before taking your case to trial. 

In February 2017, a Massachusetts judge ruled that the Alcotest 9510 machine was presumptive unreliable because the the methodology used by OAT for annually certifying the devices from June 2012 through September 14, 2014, did not produce scientifically reliable results.

Since August 2017, the district attorney's offices statewide were not introducing breath test results in their OUI prosecutions (with very limited exceptions). Since the start of the litigation challenging the breathalyzer machines, the Massachusetts Office of Alcohol Testing annually calibrates and certifies the Draeger Alcotest 9510 devices that are used by police across the Commonwealth.

In November 2018, it was revealed that the Office of Alcohol Testing failed to produce hundreds of discovery documents that illustrated calibration issues with over 400 Draeger devices that were in use all of the state. As part of its ruling, the court set conditions for OAT to meet, including accreditation and a showing that OAT had addressed the issues that resulted in the lab's failure to produce key discovery documents.

In June 2019, the Office of Alcohol Testing obtained national accreditation from ANAB as a forensic calibration laboratory, a major step towards resuming its use of admitting breath test results in drunk driving prosecutions. ANAB is the largest accrediting organization and certifies forensic and calibration laboratories' compliance with international crime lab standards.***

Boston Drunk Driving Lawyer Lefteris K. Travayiakis is available 24/7 to explain your legal rights and help defend you against any Massachusetts DUI / OUI Charges.  

Call 617-325-9500 or Click Here to Contact a Boston DUI Lawyer Online.

Boston DUI Lawyers Blog - Breathalyzer Test