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Breathalyzer Tests and License Suspensions in Massachusetts
After an OUI arrest in Massachusetts, submitting to the breath test or refusing the breathalyzer can affect both the criminal case and the driver's license. Submitting to the breath test can produce a blood alcohol concentration result that the Commonwealth may seek to admit at trial. A qualifying result also causes an immediate license suspension.
Refusing the breathalyzer prevents the instrument from producing a completed breath result. The refusal generally cannot be used as evidence of guilt at the criminal trial, but it causes a separate administrative suspension that is usually longer.
The outcome is not the same for every driver. It changes with age, the number and type of prior offenses, commercial-license status, the kind of vehicle being operated, the transportation of placarded hazardous material, and specified serious prior convictions. A later court disposition can create another license consequence after either decision.
For the adult refusal and court-disposition tables on this page, prior offense means a qualifying event counted under the current provisions of M.G.L. c. 90, § 24. Section 24 treats a person as convicted after a guilty plea, a plea of nolo contendere, an admission to sufficient facts, including the admission underlying a continuance without a finding, a guilty finding, or a judgment of guilt.
That definition applies even where the court imposed probation without sentence, suspended the sentence, or placed the case on file. The statute separately counts a court assignment to an alcohol or controlled-substance education, treatment, or rehabilitation program for a like offense in Massachusetts or another jurisdiction. The exact docket and Registry record must therefore be reviewed rather than relying on whether an earlier case was later dismissed.
The count used below always refers to offenses before the present arrest. No prior offenses means the present arrest would be treated as a potential first offense. One prior offense means the present arrest would be a potential second offense.
Two prior offenses means the present arrest would be a potential third offense. Three prior offenses means the present arrest would be a potential fourth offense. Four or more prior offenses means the present arrest would be a potential fifth or subsequent offense. The description does not establish guilt in the present case.
Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and represents people charged with OUI in the Boston Municipal Court and District Courts throughout Eastern Massachusetts. This page compares the criminal-evidence and license consequences of submitting to the breath test and refusing the breathalyzer for adults with and without prior offenses, drivers under age 21, and commercial drivers. The Massachusetts OUI license-suspension and reinstatement guide provides the complete administrative procedures, restoration rules, and reinstatement requirements.
The Two Decisions Compared
The breath-test decision concerns two different legal consequences. The criminal-evidence consequence concerns what the Commonwealth may present in court. The administrative consequence concerns the right to drive while the criminal case is pending and afterward.
| Consequence | Submit to the breath test | Refuse the breathalyzer |
|---|---|---|
| Station breath result | A completed result may be created | No completed breathalyzer result is created |
| Criminal prosecution | An admitted result may support the per se OUI theory or the impairment theory | Refusal generally may not be admitted as evidence of guilt, but the case may proceed on other evidence |
| Immediate license action | A result at or above the applicable threshold causes a result-based suspension | Refusal causes a refusal suspension |
| Later court disposition | An eligible Section 24D disposition, including one entered after a conviction, carries a shorter license suspension than a conviction sentenced outside Section 24D | The same court-disposition rules apply. A refusal suspension must run consecutively to every additional suspension arising from the same incident and to another refusal suspension |
The decision is ordinarily requested during booking. Massachusetts provides no Sixth Amendment, Article 12, or statutory right to consult counsel before deciding whether to submit to the breath test. Commonwealth v. Neary-French, 475 Mass. 167 (2016). The officer must provide the approved warning concerning the consequences of refusing the breathalyzer.
Roadside Breath Tests and the Breathalyzer Offered After Arrest Are Different
An officer may ask a driver to blow into a handheld device at the roadside before arrest. That portable screening device is different from the certified infrared breathalyzer used after arrest. Refusing the portable roadside test does not create the post-arrest chemical-test-refusal suspension under M.G.L. c. 90, § 24(1)(f).
Massachusetts statutes and regulations impose operator, device, observation, and testing-sequence requirements on the breathalyzer. They do not establish a categorical rule governing every possible evidentiary use of a portable-test result. Whether a reference to roadside testing may be admitted depends on the issue, the purpose for which it is offered, and the trial judge's ruling.
The Massachusetts field sobriety and roadside breath-test FAQs address the roadside investigation. The Massachusetts breath-test and blood alcohol evidence FAQs address the breathalyzer, incomplete samples, hospital records, and blood evidence. The remainder of this page concerns the breath test requested after an arrest for OUI involving alcohol.
Drivers Age 21 or Older with No Prior Offenses
For a driver age 21 or older with no prior offenses, the immediate comparison is between a result-based suspension of no more than 30 days and a 180-day refusal suspension. The evidentiary consequences remain separate from those periods.
If the Driver Submits to the Breath Test
A result of .08 or greater causes an immediate suspension under M.G.L. c. 90, § 24(1)(f)(2). The suspension begins when the officer gives the notice and lasts until the criminal case is disposed of, but it cannot exceed 30 days. A later court-disposition suspension is a separate legal event.
The result may also become evidence in the criminal case. A result of .08 or greater can support the per se theory of OUI if the Commonwealth establishes the required foundation. The Commonwealth must still prove operation and that the operation occurred on a way or in a place covered by the statute.
A result below .08 does not necessarily end the case. Massachusetts separately permits prosecution under an impairment theory. A result of .05 or less creates a permissible inference that the defendant was not under the influence of intoxicating liquor, and the statute directs release from custody. A result above .05 but below .08 creates no statutory inference either way.
Submitting to the breath test does not make the reported number automatically admissible. The required foundation and potential challenges are addressed below and in the Massachusetts breathalyzer-defense guide.
If the Driver Refuses the Breathalyzer
Refusing the breathalyzer is not a separate Massachusetts criminal charge. It prevents the instrument from producing a completed breath result, and M.G.L. c. 90, § 24(1)(e) generally bars the Commonwealth from using the refusal as evidence against the defendant at the criminal trial. The refusal remains the basis for the administrative license proceeding.
The immediate refusal suspension is 180 days. It does not end after 30 days and does not automatically end when the criminal case is dismissed or tried. The OUI prosecution may continue through driving evidence, observations, statements, video, field sobriety evidence, and other admissible evidence.
The statutory Registry hearing right must be exercised within 15 days of suspension. The hearing is limited to reasonable grounds, arrest, and refusal. The deadlines and review routes are set out below.
Later Consequences in a Potential First-Offense Case
An eligible Section 24D disposition ordinarily causes a suspension of 45 to 90 days whether the court enters a guilty finding or continues the case without a finding. A first-offense conviction sentenced outside Section 24D ordinarily causes a one-year revocation. Those later consequences can follow either submission or refusal.
A refusal suspension must run consecutively to every additional suspension arising from the same incident and to another refusal suspension. Section 24D does not change that calculation. It permits an eligible participant to apply for limited driving while the listed same-incident suspensions remain in effect.
Drivers with Prior Offenses
The number of prior offenses changes the refusal period and the license consequence of a later conviction. It does not lengthen the immediate result-based suspension. If a driver submits to the breath test and produces a result at or above the applicable threshold, that immediate suspension still lasts only until disposition, subject to a 30-day maximum. The prior-offense count matters when the refusal period is calculated and when the present case is disposed of.
| Prior offenses before this arrest | How the present arrest would be counted | If the driver submits to the breath test and the result is .08 or greater | If the driver refuses the breathalyzer | License consequence after the present case |
|---|---|---|---|---|
| None | Potential first offense | Until disposition, capped at 30 days | 180 days | 45 to 90 days if the court orders an eligible Section 24D disposition, including after a conviction; otherwise 1 year after conviction |
| One | Potential second offense | Until disposition, capped at 30 days | 3 years | Section 24D may remain available once in a lifetime if the single prior offense occurred at least 10 years earlier; otherwise 2 years after conviction |
| Two | Potential third offense | Until disposition, capped at 30 days | 5 years | 8 years |
| Three | Potential fourth offense | Until disposition, capped at 30 days | Lifetime | 10 years |
| Four or more | Potential fifth or subsequent offense | Until disposition, capped at 30 days | Lifetime | Lifetime |
The table assumes a driver age 21 or older and does not include the separate under-21, commercial-license, serious-injury, homicide, or manslaughter provisions. A submitted result below .08 does not cause the adult result-based suspension, although the impairment case may continue.
The word potential matters. Three prior offenses means the present arrest would be treated as a potential fourth-offense case for charging, disposition, and license analysis. It does not mean that the present allegation has been proven.
The refusal periods are based on the statutory record rather than the informal description of an earlier case. A CWOF based on an admission to sufficient facts counts within the current statutory definition. A qualifying court assignment to an alcohol or controlled-substance education, treatment, or rehabilitation program also counts. A like event from another jurisdiction may count as well.
The suspension and reinstatement guide linked above provides the complete treatment of suspension sources, prior-offense records, hearing procedures, restoration, and reinstatement.
Drivers Under Age 21
Drivers under 21 face a lower administrative threshold and can face more than one license action from the same incident. The criminal per se OUI threshold remains .08. For license purposes, however, a result of .02 or greater triggers the result-based suspension and the additional provisions of M.G.L. c. 90, § 24P.
Section 24P uses a different history test for its consent-based program. The person must have no previous arrest or charge under Sections 24, 24G, or 24L. That program-eligibility test is separate from the conviction and program-assignment history used to calculate a refusal period under Section 24.
The table below assumes no prior offenses. Prior offenses can increase the refusal period to five years or lifetime under the same counting rules that apply to older drivers.
| Age at the time of the violation | If the driver submits to the breath test | If the driver refuses the breathalyzer | Program and disposition consequence |
|---|---|---|---|
| Over 18 and under 21 | A result of .02 or greater causes a suspension until disposition, capped at 30 days, plus a 180-day Section 24P suspension | A 3-year refusal suspension, plus the 180-day Section 24P suspension | Entry into the qualifying program waives the Section 24P suspension; an eligible Section 24D disposition carries 210 days |
| Exactly 18 | A result of .02 or greater causes a suspension until disposition, capped at 30 days, plus a 180-day Section 24P suspension | A 3-year refusal suspension, plus the 180-day Section 24P suspension | The statute's program-waiver language does not expressly resolve the treatment of a person exactly 18; current Registry treatment must be confirmed; an eligible Section 24D disposition carries 210 days |
| Under 18 | A result of .02 or greater causes a suspension until disposition, capped at 30 days, plus a 1-year Section 24P suspension | A 3-year refusal suspension, plus the 1-year Section 24P suspension | Program entry reduces the Section 24P period to 180 days; an eligible Section 24D disposition carries 210 days |
Section 24P applies notwithstanding the finding on the underlying criminal charge. Its suspension is additional to the court-imposed consequence. If an eligible driver does not successfully complete the required underage program, the Registry imposes a 180-day suspension, or one year if the driver was under 18 at the time of the violation.
The statute says that the program waiver applies to a person who is under 21 but over 18. Because that phrase does not expressly include a person exactly 18, the driver's age on the date of the incident and the Registry's current treatment should be confirmed before anyone assumes that the Section 24P suspension will be waived.
A driver under 21 who refuses the breathalyzer faces the three-year refusal period even without a prior offense. The Section 24P period is additional, and the refusal suspension must run consecutively to the other suspension periods. An eligible Section 24D participant may apply for discretionary limited driving after entering the required program, but eligibility to apply is not approval.
Commercial Driver's License Consequences
Commercial-driving consequences are separate from the loss of ordinary driving privileges. The outcome depends on whether the person was operating a personal vehicle or a commercial motor vehicle and whether placarded hazardous material was being transported.
Commercial disqualification uses the separate definition of conviction in M.G.L. c. 90F, § 1. For that purpose, an admission to sufficient facts followed by a continuance without a finding counts as a conviction. Tirado v. Board of Appeal on Motor Vehicle Liability Policies & Bonds, 472 Mass. 333, 339 (2015).
| Driver and vehicle | If the driver submits to the breath test | If the driver refuses the breathalyzer |
|---|---|---|
| CDL holder age 21 or older operating a personal vehicle | The ordinary .08 adult threshold applies. A result alone does not create the commercial-motor-vehicle .04 disqualification, but a later qualifying OUI conviction can disqualify commercial driving for at least 1 year | The ordinary Massachusetts refusal suspension applies, and refusal is a listed commercial-disqualification event that can cause at least 1 year of commercial disqualification |
| Person operating a commercial motor vehicle | A result of .04 or greater reported under M.G.L. c. 90F, § 11 causes 1 year of commercial disqualification. A result of .08 or greater can also trigger the ordinary result-based suspension and become evidence in the OUI case | Refusal produces the ordinary Massachusetts refusal suspension and 1 year of commercial disqualification |
| Commercial motor vehicle transporting placarded hazardous material | A reported result of .04 or greater causes 3 years of commercial disqualification, in addition to any other applicable consequence | Refusal causes 3 years of commercial disqualification, in addition to the ordinary refusal suspension |
| Two qualifying commercial events from separate incidents | A second listed conviction, .04 event, refusal, or qualifying combination can cause lifetime commercial disqualification | A second refusal or qualifying combination from a separate incident can cause lifetime commercial disqualification |
The .04 threshold applies when the person was operating a commercial motor vehicle. It is not the general Massachusetts per se OUI threshold for a CDL holder driving a personal vehicle. In a personal vehicle, a later OUI conviction or a qualifying refusal can still disqualify commercial driving, but a .04 result alone does not invoke the commercial-motor-vehicle .04 rule.
The table states the adult thresholds. A CDL holder who is under 21 also remains subject to the .02 result threshold and the separate Section 24P rules.
A lifetime commercial disqualification is not automatically reduced after 10 years. The Registrar may establish a discretionary process under which a lifetime disqualification is reduced to a period of not less than 10 years. An ordinary hardship license does not restore commercial driving. At most, it permits the limited noncommercial operation authorized by the Registry.
Drivers with Specified Serious Prior Convictions
Specified serious prior convictions create refusal periods different from the ordinary prior-offense table. These provisions apply because of the earlier judgment, not because of the facts alleged in the present case.
| Specified prior conviction | If the driver submits to the breath test | If the driver refuses the breathalyzer |
|---|---|---|
| OUI causing serious bodily injury under M.G.L. c. 90, § 24L | A qualifying result causes the result-based suspension and may become evidence; the special 10-year period below is a refusal provision | 10-year refusal suspension |
| Motor vehicle homicide under M.G.L. c. 90, § 24G(a), the covered alcohol form of § 24G(b), or manslaughter while operating under M.G.L. c. 265, § 13½ | A qualifying result causes the result-based suspension and may become evidence; the lifetime period below is a refusal provision | Lifetime revocation |
The earlier conviction can also affect how the present offense is charged and the consequences of a later disposition. Certified court and Registry records are necessary before the applicable period is stated.
License Consequences After the Court Case Is Resolved
The immediate breath-test decision and the later court disposition are different legal events. Section 24D is not limited to a continuance without a finding. An eligible person who is convicted can receive the Section 24D disposition and its shorter suspension. A guilty finding sentenced outside Section 24D produces the ordinary conviction period. Either kind of disposition can create another license period after submitting to the breath test or refusing the breathalyzer.
| Disposition or present offense level | Post-disposition loss of license | Earliest employment or education hearing | Earliest general-hardship hearing |
|---|---|---|---|
| Eligible Section 24D disposition, including one entered after conviction | 45 to 90 days, or 210 days if the person was under 21 at the time of the offense | Immediate application for one limited hardship license after program entry | No second Section 24D waiting period or application |
| First-offense conviction sentenced outside Section 24D | 1 year | After 3 months | After 6 months |
| Second offense | 2 years | After 1 year | After 18 months |
| Third offense | 8 years | After 2 years | After 4 years |
| Fourth offense | 10 years | After 5 years | After 8 years |
| Fifth or subsequent offense | Lifetime | Not available | Not available |
Section 24D provides one immediate application for a limited hardship license. It does not use the separate employment-or-education and general-hardship waiting periods that apply to the ordinary conviction revocations in the remaining rows.
The hearing dates are eligibility points, not promises that the Registry will issue a license. Another active suspension can prevent issuance. Repeat-offender hardship licenses ordinarily require an ignition interlock device, and the Registry may impose an interlock restriction in a qualifying first-offense case involving a result of .15 or greater.
This table does not replace a calculation from the actual Registry record. The suspension and reinstatement guide linked above addresses the separate legal sources, consecutive periods, restoration, ignition interlock, appeals, and full reinstatement.
Section 24D and Limited Driving
M.G.L. c. 90, § 24D authorizes an alternative disposition for an eligible person who is convicted of or charged with OUI. The court may use Section 24D after a guilty finding as well as after an admission that results in a continuance without a finding. It ordinarily applies to a person with no prior offense.
Once in a lifetime, Section 24D may also apply to a person with one qualifying prior offense that consists of a like conviction or qualifying program assignment, when that prior offense occurred at least 10 years before the present offense. It does not apply when the person caused serious personal injury or death during the events giving rise to the OUI complaint or indictment.
After entering the required program, an eligible Section 24D participant may immediately apply to the Registry for consideration of a limited hardship license. The Registry may authorize the same 12-hour period each day, seven days a week, under conditions it prescribes.
The statute permits consideration during listed same-incident suspensions, including the Section 24D disposition, a refusal suspension, and a Section 24P suspension. The underlying suspensions remain in effect, the decision is discretionary, and a suspension from another incident or an unlisted statute can prevent relief.
The Massachusetts OUI hardship-license and Section 24D guide explains the complete eligibility and application rules. The Massachusetts OUI hardship-license FAQs provide shorter answers by circumstance.
Deadlines to Challenge the Immediate Suspension
The review route depends on whether the driver submitted to the breath test or refused the breathalyzer. Filing in one forum does not preserve a different statutory remedy.
| License action | Deadline | Forum and issue |
|---|---|---|
| Refusal suspension | Within 15 days of suspension | Registry hearing limited to reasonable grounds, arrest, and refusal |
| Judicial review after the Registry's final refusal decision | Within 30 days after issuance of the final decision | District Court for the judicial district where the alleged offense occurred; review is on the Registry record |
| Breath-result suspension | Within 10 days of suspension | Court where the criminal charge is pending; the narrow issue is whether a blood test taken within a reasonable time showed a result below .08, or below .02 for a driver under 21 |
| Restoration after dismissal or not-guilty finding | Immediately when the favorable disposition enters | Court that took final action, provided the listed charges were resolved favorably and no other alcohol-related charge remains pending |
The ten-day result procedure arises under M.G.L. c. 90, § 24(1)(g), after a breath-based suspension under § 24(1)(f)(2). It is not a general challenge to the instrument, operator, observation period, or testing sequence. Those evidentiary issues belong in the criminal case.
A dismissal or not-guilty finding does not automatically remove a refusal suspension. The statute creates a rebuttable presumption in favor of restoration at the immediate post-disposition hearing. The Commonwealth may oppose restoration by proving that it would likely endanger public safety.
In Commonwealth v. Richards, 480 Mass. 413 (2018), the Supreme Judicial Court held that the motion must be made and heard immediately after the favorable disposition. The statute does not authorize later repeated motions based on changed circumstances.
The Massachusetts OUI license suspension and RMV hearing FAQs provide shorter answers about the notices, deadlines, and review procedures.
When a Breathalyzer Result Is Admissible
A printed breath-test number is not automatically admitted at trial. When the test was made at a police officer's direction, M.G.L. c. 90, § 24(1)(e) requires consent, access to the result on request, and a reasonable opportunity, on request and at the defendant's expense, to obtain another test from a person or physician selected by the defendant.
M.G.L. c. 90, § 24K and 501 C.M.R. 2.13 and 2.14 require a certified operator, a certified infrared breath-testing device, an observation period of at least 15 minutes immediately before the test, and a prescribed testing sequence. If the operator has reason to believe the person introduced an item into the mouth, the observation period must restart. If the device reports mouth alcohol, the sequence ends, the observation period restarts, and a new sequence begins.
The required sequence consists of an adequate breath sample, a control-standard analysis, and a second adequate breath sample. If the two samples are not within plus or minus .020 blood-alcohol-content units of each other, a new sequence must begin. Consent must be documented.
Not every departure from a procedure requires exclusion. The court distinguishes a foundational failure or substantial deviation that undermines the purpose of the rule from an issue affecting the weight of the evidence. Counsel reviews the breath-test ticket, booking video, consent documentation, operator records, device certification, and Office of Alcohol Testing records before deciding whether to move to exclude the result.
An additional historical rule applies to certain Alcotest 9510 results. Under Commonwealth v. Hallinan, 491 Mass. 730 (2023), a qualifying defendant whose evidence included a result from an Alcotest 9510 device last calibrated and certified before April 18, 2019, receives a conclusive presumption of egregious government misconduct.
Eligibility turns on the device's calibration and certification history, not merely on the date of the defendant's test. The rule is limited to the affected device history and the procedural requirements for relief. The full history and motion framework appear in Commonwealth v. Hallinan and Massachusetts Alcotest 9510 Cases.
Hallinan Checklist for Clients and Lawyers
- Client: Gather the court, docket number, date and form of the disposition, breath-test ticket, and any notice concerning the Alcotest 9510 or Office of Alcohol Testing.
- Lawyer: Identify the device model and serial number, obtain the calibration and certification history, and determine whether the device was last calibrated and certified before April 18, 2019.
- Lawyer: Confirm that the result formed part of the evidence against the defendant.
- Lawyer: Identify whether the case is pending or ended in a guilty plea, an admission to sufficient facts, or a conviction after trial, then apply the correct exclusion or Rule 30 standard.
Independent Medical Examinations and Blood Tests
M.G.L. c. 263, § 5A gives a person held at a police station or other place of detention and charged with alcohol OUI the right, upon request and at the person's expense, to an immediate examination by a physician the person selects. Police must inform the person of that right at booking and provide a reasonable opportunity to exercise it.
That right is distinct from the reasonable opportunity to obtain another alcohol test described in M.G.L. c. 90, § 24(1)(e). It is also distinct from the blood result required for the narrow ten-day review of a breath-result suspension. Requesting an examination under Section 5A does not necessarily produce the qualifying blood test needed for that review.
A hospital test ordered for medical treatment presents another issue. Hospital laboratories may report serum or plasma ethanol rather than a whole-blood alcohol percentage. Authentication, purpose, conversion, and scientific foundation must be addressed before a medical number is compared with a statutory BAC threshold.
Massachusetts law on independent tests, hospital medical records, serum or plasma results, refusal evidence, and incomplete samples is addressed in the evidence FAQs linked above.
The Criminal OUI Case Remains Separate
Neither submitting to the breath test nor refusing the breathalyzer resolves the criminal charge. If the driver submits to the breath test, the Commonwealth may seek to admit the result, but it must establish the foundation and prove the other elements. If the driver refuses the breathalyzer, the Commonwealth has no completed breathalyzer result and generally may not use the refusal as evidence of guilt, but it may proceed through other admissible evidence.
The defense therefore examines operation, the location, driving evidence, field sobriety conditions, statements, video, the arrest, the test foundation, medical evidence, and the driver's constitutional rights. The Massachusetts OUI defense guide addresses the elements, motions, dispositions, and trial defenses.
What to Preserve After the Arrest
Preserve the officer's suspension notice, the implied-consent form, the breath-test ticket if a test occurred, the booking paperwork, any hospital or independent-testing record, the criminal complaint, and every Registry notice. The driving record should be obtained and compared with certified dockets for the exact prior-offense count and every active suspension.
Do not assume that the end of the stated suspension period automatically restores the right to drive. The Registry may still require program completion, interlock compliance, an examination, payment, or formal reinstatement. A favorable criminal disposition does not automatically remove every administrative action.
The guide to what happens after a Massachusetts OUI arrest follows the case from booking through arraignment, discovery, motions, and resolution. The Massachusetts OUI and motor vehicle defense hub organizes the firm's pages on the criminal charge, testing, license actions, hardship relief, and related motor-vehicle offenses.
Bottom Line
Submitting to the breath test and refusing the breathalyzer produce different results in each driver category. For a driver age 21 or older with no prior offenses, submitting to the breath test and producing a result of .08 or greater causes an immediate suspension capped at 30 days and may create evidence for the criminal case. Refusing the breathalyzer prevents a completed result and generally keeps the refusal itself out of the criminal trial, but causes a 180-day administrative suspension.
Prior offenses increase the refusal period and the consequences of a later conviction. One prior offense means the present arrest would be a potential second offense; two prior offenses means a potential third offense; three prior offenses means a potential fourth offense; four or more prior offenses means a potential fifth or subsequent offense. Drivers under 21 and commercial drivers face additional rules, and specified serious prior convictions can produce 10-year or lifetime refusal consequences.
Attorney Serpa handles the criminal OUI case and advises clients about the related license consequences. Serpa Law Office does not appear for clients at Registry hearings. Contact Serpa Law Office at 617.936.0201 for a free, confidential consultation.
Last Reviewed: August 2026
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