Should I Take the Breathalyzer in Massachusetts? The Implied Consent Law, License Suspensions, and the Decision at the Station

The Implied Consent Law: M.G.L. c. 90, § 24(1)(f)(1)

Under Massachusetts General Laws Chapter 90, Section 24(1)(f)(1), any person who operates a motor vehicle on a public way in Massachusetts is deemed to have consented to a chemical test of breath, blood, or urine upon arrest for operating under the influence. This is called the implied consent law. The test offered at the police station is the Draeger Alcotest 9510, the only breathalyzer approved for evidentiary use in Massachusetts under 501 CMR 2.00. The roadside portable breath test (PBT) is not covered by the implied consent law and its result is not admissible at trial.

The decision whether to take or refuse the breathalyzer at the station is consequential and has two distinct effects: an immediate administrative license suspension by the Registry of Motor Vehicles, independent of any court proceeding, and an evidentiary effect on the criminal case. Both must be understood before the decision is made, which is why it is best evaluated with defense counsel immediately after arrest.

What Happens If You Take the Breathalyzer

If you take the breathalyzer and register .08 or above, the RMV imposes an administrative license suspension of 30 days for a first offense. That suspension takes effect at the police station. The result is also provided to the prosecution for use in the criminal case as per se evidence of a BAC at or above the legal limit. A per se violation under M.G.L. c. 90, § 24 does not require proof of actual impaired driving, proof of the BAC reading is sufficient. The result is admissible at trial subject to foundational requirements.

If you take the breathalyzer and register below .08, there is no per se violation and no administrative RMV suspension for the test result. The Commonwealth must then prove OUI through evidence of actual impairment rather than BAC. However, the prosecution may still charge OUI based on the officer’s observations, field sobriety test results, and other evidence even when the breath test result is below .08. A .07 result does not automatically end a prosecution. See: Massachusetts OUI FAQs.

What Happens If You Refuse the Breathalyzer

If you refuse the breathalyzer, your refusal is inadmissible at trial in Massachusetts. The jury will never hear that you declined to take the test. The prosecution must prove the OUI charge through the officer’s observations of driving behavior, field sobriety test performance, and general indicia of impairment, without a BAC number. That is a different and in many cases harder evidentiary case for the Commonwealth to make.

The tradeoff is the RMV administrative suspension, which is significantly longer for a refusal than for a failed test:

• First offense refusal: 180-day suspension.
• Second offense refusal: 3-year suspension.
• Third offense refusal: 5-year suspension.
• Fourth or subsequent offense refusal: lifetime suspension.

For drivers under 21, a refusal triggers a 3-year suspension plus an additional 180-day Youth Alcohol Program (YAP) suspension. For drivers under 18, the YAP suspension is one year. These suspensions are administrative actions by the RMV and take effect regardless of the outcome of the criminal case. Winning the criminal case does not automatically restore the RMV refusal suspension, a separate court order is required. See: Massachusetts OUI License Suspensions.

The BAC Thresholds

The per se BAC thresholds under Massachusetts OUI law are:

• Drivers 21 and older: .08% BAC.
• Drivers under 21: .02% BAC (zero tolerance standard under the Junior Operator Law, M.G.L. c. 90, § 24P).
• CDL holders operating a commercial vehicle: .04% BAC under 49 C.F.R. § 382.201.

A CDL holder whose personal vehicle BAC is at or above .08 faces the standard implied consent consequences. A CDL holder operating a commercial vehicle faces the lower .04 threshold. A CDL holder convicted of OUI faces mandatory CDL disqualification of one year for a first offense regardless of whether the vehicle driven was a commercial vehicle. A CWOF is treated as a conviction for CDL purposes under federal regulations.

The 15-Day Appeal Deadline for Refusal Suspensions

A breathalyzer refusal suspension can be challenged at the RMV, but the appeal deadline is strict. The appeal must be filed within 15 days of the date of arrest. Missing this deadline forfeits the right to appeal. The appeal is heard at the RMV Board of Appeal in Boston. The grounds for appeal are limited to three issues: whether the officer had reasonable grounds to believe the defendant was operating under the influence; whether the defendant was placed under lawful arrest before the test was requested; and whether the defendant actually refused. A medical condition that prevented the defendant from producing a sufficient breath sample is frequently contested on the third ground.

Appeals of breathalyzer refusal suspensions are difficult to win. The RMV applies a low standard at the administrative level. For many defendants, the most efficient path to license restoration after a refusal is a not-guilty verdict at trial, after which defense counsel files a motion under M.G.L. c. 90, § 24(1)(f)(1) for the court to order the RMV to restore the license. See: Massachusetts OUI License Suspensions.

Consecutive Suspensions: The Administrative and Criminal Suspensions Run in Sequence

Massachusetts OUI law imposes two separate categories of license suspension, and they run consecutively, not simultaneously. The RMV administrative suspension triggered at the station is the first suspension. The court-ordered suspension imposed as part of a criminal disposition is the second. They do not overlap.

For a first-offense defendant who refused the breathalyzer (180-day RMV suspension) and is subsequently convicted or accepts a 24D disposition (45-to-90-day court suspension), the 45-day court suspension does not begin until the 180-day RMV suspension has been fully served. The total period off the road is approximately nine months to a year. For defendants resolving cases through a CWOF with a 24D, the court suspension is added after the completion of the RMV suspension in the same way. See: Massachusetts OUI License Suspensions.

The Breathalyzer Result as Evidence: What It Means at Trial

If you took the breathalyzer and the result is at or above .08, that result is admissible at trial as per se evidence of a BAC violation subject to the Commonwealth establishing the proper foundation. The foundation requirements are set out in 501 CMR 2.00 and include: the officer’s certification to operate the Draeger Alcotest 9510; compliance with the 15-minute continuous observation period; the calibration and maintenance records for the specific machine used; and the .02% internal consistency requirement between the two required breath samples.

Any deficiency in the foundation is grounds for a Motion to Suppress. Following Commonwealth v. Ananias, which resulted in the exclusion of over 27,000 breath test results statewide after the Office of Alcohol Testing withheld failed calibration records from defense counsel, calibration and maintenance records for the specific machine used in the defendant’s arrest are demanded in every case. See: Why a Massachusetts Breathalyzer Result Does Not Establish Guilt Beyond a Reasonable Doubt.

A breathalyzer result that survives suppression and is admitted at trial is not an automatic conviction. The prosecution must still prove guilt beyond a reasonable doubt on the totality of the evidence. Body camera footage, booking room video, and witness testimony remain relevant and can contradict the prosecution’s impairment narrative. See: Fighting an OUI in Massachusetts: How Cases Are Won at Trial.

Consequences for Specific Populations

Licensed professionals. For physicians, nurses, attorneys, engineers, financial advisors, and other licensed professionals, an OUI conviction or CWOF is a reportable event to most Massachusetts licensing boards and to FINRA for registered securities professionals. The administrative license suspension itself is visible in background checks that licensing boards conduct. The defense strategy for licensed professionals prioritizes a not-guilty verdict or pre-trial dismissal over a CWOF disposition. See: Criminal Defense for Licensed Professionals in Massachusetts.

College and university students. For university students in the Boston and Cambridge area, an OUI conviction or CWOF triggers a university disciplinary proceeding. Under the Junior Operator Law (M.G.L. c. 90, § 24P), drivers under 21 face enhanced penalties and the .02 BAC threshold. Defense of student OUI cases focuses on suppression of breathalyzer and field sobriety evidence from the earliest stage of the case.

CDL holders. CDL holders face a one-year disqualification for a first OUI conviction and lifetime disqualification for a second, regardless of whether the vehicle was commercial. A CWOF is a conviction for federal CDL purposes. The breathalyzer decision for a CDL holder is particularly consequential because the evidentiary impact of a refusal on the criminal case must be weighed against the career consequences of a conviction.

Non-citizens. A CWOF on an OUI charge is treated as a conviction for federal immigration purposes under 8 U.S.C. § 1101(a)(48)(A). Any proposed OUI disposition for a non-citizen must be reviewed by an immigration attorney before acceptance. See: Immigration Consequences of Massachusetts Criminal Charges.

Related Pages

• OUI Defense in Massachusetts, Main Practice Area Page
• Massachusetts OUI License Suspensions
• Massachusetts Motor Vehicle Crimes
• Massachusetts OUI FAQs
• Why a Massachusetts Breathalyzer Result Does Not Establish Guilt Beyond a Reasonable Doubt
• Fighting an OUI in Massachusetts: How Cases Are Won at Trial
• What Happens After an OUI Arrest in Massachusetts
• Arraignment in the Massachusetts Trial Court
• CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs
• Illegal Searches and Seizures in Massachusetts
• Criminal Defense for Licensed Professionals in Massachusetts
• Immigration Consequences of Massachusetts Criminal Charges
• College and University Student Criminal Defense
• Massachusetts Criminal Defense Trial Results
• Boston Municipal Court
• Quincy District Court
• Cambridge District Court
• Dedham District Court
• Woburn District Court

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