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 operator's driver's license. Submitting to the breath test can produce a breath test final analysis that the Commonwealth may seek to admit at trial. If the breath test final analysis is .08 or greater, or .02 or greater for an operator under 21, the police officer suspends the license immediately.

Refusing the breathalyzer prevents the instrument from producing a breath test final analysis. 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 consequences of submitting to the breath test or refusing the breathalyzer differ from driver to driver. The consequences depend on the driver's age, the number of prior offenses and their type, 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 whether the driver submitted to the breath test or refused the breathalyzer.

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.

The § 24 definition of conviction 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. Counsel must therefore review the exact docket and Registry record rather than rely 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. Describing the present arrest as a potential first or subsequent offense 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.

The police ordinarily ask the driver to submit to the breath test during booking. A driver has no right under the Sixth Amendment, Article 12, or any Massachusetts statute 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. The portable screening device used at the roadside 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. The breathalyzer statutes and regulations do not establish a categorical rule for every possible evidentiary use of a portable-test result. The trial judge decides whether to admit a reference to roadside testing, based on the issue and the purpose for which the reference is offered.

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 the suspension periods.

A Driver Who Submits to the Breath Test

A breath test final analysis 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 breath test final analysis may also become evidence in the criminal case. A breath test final analysis 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.

The Commonwealth can still prosecute a driver whose breath test final analysis is below .08. Massachusetts separately permits prosecution under an impairment theory. A breath test final analysis of .05 or less creates a permissible inference that the defendant was not under the influence of intoxicating liquor. The statute also directs that the defendant be released from custody. A breath test final analysis above .05 but below .08 creates no statutory inference either way.

Submitting to the breath test does not make the breath test final analysis automatically admissible. The required foundation and potential challenges are addressed below and in the Massachusetts breathalyzer-defense guide.

A Driver Who Refuses the Breathalyzer

Refusing the breathalyzer is not a separate Massachusetts criminal charge. A refusal prevents the instrument from producing a breath test final analysis. M.G.L. c. 90, § 24(1)(e) also 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. The refusal suspension does not end after 30 days and does not automatically end when the criminal case is dismissed or tried. The Commonwealth may continue the OUI prosecution with driving evidence, observations, statements, video, field sobriety evidence, and other admissible evidence.

The driver must exercise the statutory right to a Registry hearing within 15 days of the suspension. The hearing is limited to reasonable grounds, arrest, and refusal. The deadlines and review procedures 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. The Section 24D suspension and the one-year revocation can apply whether the driver submitted to the breath test or refused the breathalyzer.

A refusal suspension must run consecutively to every additional suspension arising from the same incident and to another refusal suspension. A Section 24D disposition does not change the requirement that a refusal suspension run consecutively. Section 24D permits an eligible participant to apply for limited driving while the listed same-incident suspensions remain in effect.

Drivers with Prior Offenses

The refusal period and the license consequence of a later conviction depend on the number of prior offenses. The number of prior offenses does not affect the length of the immediate result-based suspension. The immediate suspension of a driver whose breath test final analysis is at or above the applicable threshold still lasts only until disposition, subject to a 30-day maximum. The Registry uses the prior-offense count to calculate the refusal period. The court also uses the prior-offense count when it disposes of the present case.

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 breath test final analysis below .08 does not cause the adult result-based suspension, although the impairment case may continue.

Three prior offenses means the present arrest would be treated as a potential fourth-offense case for charging, disposition, and license analysis. The word potential means that the present allegation has not 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, the result-based suspension and the additional provisions of M.G.L. c. 90, § 24P apply to a result of .02 or greater.

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. The Section 24P 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.

Section 24P applies notwithstanding the finding on the underlying criminal charge. The Section 24P suspension is additional to the court-imposed consequence. The Registry imposes a 180-day suspension on an eligible driver who does not successfully complete the required underage program, or a one-year suspension 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. The statute's wording does not expressly include a person who is exactly 18. Counsel should therefore confirm the driver's age on the date of the incident and the Registry's current treatment of a driver who was exactly 18 before anyone assumes that the Registry will waive the Section 24P suspension.

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. The refusal suspension must also 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 commercial disqualification, 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).

The .04 threshold applies when the person was operating a commercial motor vehicle. The .04 threshold is not the general Massachusetts per se OUI threshold for a CDL holder driving a personal vehicle. A CDL holder driving a personal vehicle can still lose commercial driving privileges after a later OUI conviction or a qualifying refusal, but the commercial-motor-vehicle .04 rule does not apply to a .04 result alone.

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, an ordinary hardship license 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. The serious-conviction refusal provisions apply because of the earlier judgment, not because of the facts alleged in the present case.

The earlier conviction can also affect how the present offense is charged and the consequences of a later disposition. Counsel needs certified court and Registry records before stating the applicable period.

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 whether the driver submitted to the breath test or refused the breathalyzer.

Section 24D provides one immediate application for a limited hardship license. Section 24D does not use the separate employment-or-education and general-hardship waiting periods that apply to the ordinary conviction revocations in the remaining rows.

A hearing date is the date on which a person becomes eligible to request a license, not a promise that the Registry will issue a license. Another active suspension can prevent issuance. Repeat-offender hardship licenses ordinarily require an ignition interlock device. The Registry may also 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. Section 24D ordinarily applies to a person with no prior offense.

Section 24D may also apply once in a lifetime to a person whose one qualifying prior offense, a like conviction or qualifying program assignment, occurred at least 10 years before the present offense. Section 24D 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 Registry's decision is discretionary. A suspension from another incident or under 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 procedure 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.

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). The ten-day result procedure is not a general challenge to the instrument, operator, observation period, or testing sequence. The defense raises challenges to the instrument, operator, observation period, and testing sequence 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 for restoration of the license 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.

Requirements for Admitting the Breath Test Final Analysis

The judge does not automatically admit the printed breath test final analysis at trial. For a test made at a police officer's direction, M.G.L. c. 90, § 24(1)(e) requires consent and access to the result on request. The statute also requires 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. The operator must restart the observation period if the operator has reason to believe the person introduced an item into the mouth. The sequence ends if the device reports mouth alcohol. The operator then restarts the observation period and begins a new sequence.

The required sequence consists of an adequate breath sample, a control-standard analysis, and a second adequate breath sample. The operator must begin a new sequence if the two samples are not within plus or minus .020 blood-alcohol-content units of each other. Consent must be documented. Under 501 CMR 2.16, the operator records a test that starts and does not finish as a refusal.

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 breath test final analysis.

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 breath test final analysis from an Alcotest 9510 device last calibrated and certified before April 18, 2019, receives a conclusive presumption of egregious government misconduct.

Exclusion of a breath test final analysis under Hallinan depends on the calibration and certification history of the device, not merely on the date of the defendant's test. The Hallinan 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

• The client gathers the name of the court, the docket number, the date and form of the disposition, the breath-test ticket, and any notice concerning the Alcotest 9510 or the Office of Alcohol Testing.
• The lawyer identifies the device model and serial number, obtains the calibration and certification history, and determines whether the device was last calibrated and certified before April 18, 2019.
• The lawyer confirms that the breath test final analysis formed part of the evidence against the defendant.
• The lawyer identifies whether the case is pending or ended in a guilty plea, an admission to sufficient facts, or a conviction after trial. The lawyer then applies the correct exclusion or Rule 30 standard.

Independent Medical Examinations and Blood Tests

A person held at a police station or other place of detention and charged with alcohol OUI has a right under M.G.L. c. 263, § 5A to an immediate examination by a physician of the person's choice. The examination takes place on the person's request and at the person's expense. Police must inform the person of the § 5A right at booking and provide a reasonable opportunity to exercise it.

The § 5A right to an examination is distinct from the reasonable opportunity to obtain another alcohol test described in M.G.L. c. 90, § 24(1)(e). The § 5A right is also distinct from the blood result required for the narrow ten-day review of a suspension based on the breath test final analysis. Requesting an examination under Section 5A does not necessarily produce the qualifying blood test needed for the ten-day review.

A hospital laboratory that tests blood for medical treatment may report serum or plasma ethanol rather than a whole-blood alcohol percentage. Authentication, purpose, conversion, and scientific foundation must be addressed before a hospital test result 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. The Commonwealth may seek to admit the breath test final analysis of a driver who submits to the breath test. The Commonwealth must still establish the foundation of the breath test final analysis and prove the other elements. The Commonwealth has no breath test final analysis when the driver refuses the breathalyzer. The Commonwealth also generally may not use the refusal as evidence of guilt, but the Commonwealth may proceed with other admissible evidence.

The defense therefore examines operation, the location, driving evidence, field sobriety conditions, statements, video, the arrest, the foundation of the breath test final analysis, 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

The driver should 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. Counsel should obtain the driving record and compare it with certified dockets to determine the exact prior-offense count and every active suspension.

A driver should not assume that the right to drive returns automatically at the end of the stated suspension period. 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 describes each stage of 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.

Summary of the Consequences

Submitting to the breath test and refusing the breathalyzer have different consequences in each driver category. For a driver age 21 or older with no prior offenses, a breath test final analysis of .08 or greater causes an immediate suspension of no more than 30 days. The breath test final analysis may also become evidence in the criminal case. Refusing the breathalyzer prevents a breath test final analysis. The Commonwealth generally may not use the refusal itself as evidence at the criminal trial. However, the refusal 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. Specified serious prior convictions can also 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