Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Can I Refuse a Breathalyzer Test in MA?

Yes. But that doesn’t mean you want to refuse. On the other hand, it also doesn’t mean you should submit to the test. This conflicting advice may leave you feeling a bit confused, but with good reason; there’s no one-size-fits-all approach to the decision to refuse (or submit to) a breathalyzer test in MA. If you decide to take the test and it reads .08 or higher, you will lose your license for 30 days if it’s your first offense. If you refuse to take the test, however, you will receive an automatic 180-day suspension.

At first glance, it may seem that taking the test is in your best interest. But a failed breathalyzer test is hard evidence to overcome at trial. You have a much better chance of beating an OUI charge if a failed breathalyzer test is not on the table. A Boston OUI defense attorney can help you defend yourself in court, whether you took and failed a breath test or refused the test altogether.

Assess Your Situation

If you refuse the test and a skilled attorney is successful in defending you against the OUI charge, your license will generally be reinstated in less than 180 days. Remember, this favorable outcome is only likely if the circumstances of your case are equally favorable. If, for example, this is your second or subsequent OUI charge, and / or several witnesses claim to have seen you driving recklessly before you were stopped, your chances of success will be seriously limited. However, if this was a first offense and there were no other aggravating circumstances present during your stop or arrest, penalties for refusing the breathalyzer are much more likely to be waived.

In MA, a blood alcohol concentration (BAC) of .08 or higher is above the legal limit. If your breathalyzer results indicate .08 or above, that evidence will be hard to fight in court. If, however, you refuse the test, there will be no evidence of your BAC at trial, and – even better – the jury will not be made aware of your refusal. If you are found not guilty, your MA OUI defense attorney will file a motion arguing for reinstatement of your license prior to the 180-day period. Unless the prosecution can prove that your license should not be reinstated, you are likely to get it back in relatively short order.

What if I’m Under 21?

If you are 21 or older and you fail a breath test, your license will be suspended for 30 days. That is just the initial suspension; you will likely receive a later suspension if you are found guilty. However, there are some circumstances in which a failed breath test carries an automatic 180-day suspension.

  • If you are between the ages of 18 and 21 and your BAC is .02 or higher, you will lose your license for 30 days plus 180 days. In some cases you can waive this suspension by enrolling in a Youth Alcohol Program (YAP).
  • If you are under the age of 18, you will face a one-year suspension if you fail a breathalyzer. If you enroll in an approved alcohol treatment program, this suspension may be reduced to 180 days.

This may seem like an easy choice – I’ll lose my license for 180 days no matter what, so I might as well refuse the test, right? But the reality is, it’s not that simple. Although a failed breath test has an extended suspension if you are under 21, so does a refusal. If you are under 21 and you refuse a breathalyzer, your license will automatically be suspended for three years.

What if this isn’t My First OUI?

Things get a bit more complicated with second and subsequent OUIs. If you’ve previously been convicted of one OUI, a breathalyzer refusal carriers an automatic three-year suspension. And if you have two previous convictions, that increases to five years. If this is your third or subsequent conviction, a refusal will result in a lifetime suspension.

Altman & Altman, LLP – Boston’s Top OUI Defense Law Firm

If you have been charged with OUI, the skilled legal team at Altman & Altman, LLP can help. If you have failed or refused a breath test, we will review the details of your case and position you for the most favorable outcome. Our experienced, knowledgeable attorneys know how to argue for the suppression or complete dismissal of breath test results when law enforcement failed to adhere to the very strict set of rules governing how these tests must be maintained and administered. If you’re facing an OUI conviction, we can help. Contact Altman & Altman, LLP today for a free and confidential consultation about your case.

 

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