Breathalyzer Tests and DUI License Suspensions

Should I Take the Breathalyzer in Massachusetts? What if I Fail or Refuse the Breathalyzer?

Boston’s Serpa Law Office is a criminal defense law firm that represents clients in Boston, Eastern and Central Massachusetts in drunk driving cases.

The decision to take a Breathalyzer during a Massachusetts drunk driving arrest is mostly simple. A positive Breathalyzer can make your DWI (“OUI” in Massachusetts) case is easier to prove for the prosecution.

The decision to take a Breathalyzer is complicated only by the license suspension that comes with a Breathalyzer refusal, described below.

Again, a Breathalyzer result above the Massachusetts limit of .08 percent blood alcohol is a “positive” result. This makes the Massachusetts OUI against you easier to prove, though not insurmountable. A skilled Boston criminal defense attorney can still defend the case, however, particularly by challenging the reliability of the Breathalyzer result.

In Massachusetts, you can be proven guilty of DUI (or “OUI” in Massachusetts) either by proof of a blood alcohol level of .08 percent or over or because you are, more generally, “under the influence” of alcohol. Under the first method, a breathalyzer or breath test reading of .08 percent BAC (blood alcohol content) or higher is very powerful evidence of guilt. If you take the breathalyzer and you fail, the police and prosecutor have therefore gained a powerful tool in proving the DUI case against you. To make matters worse, your license will also be suspended immediately for the breathalyzer failure. (See below).

On the other hand, if you refuse the breathalyzer, your license will be suspended immediately and for a far longer period than if you take and fail the breathalyzer. However, a jury will never know that you refused the test, and there will be no evidence of your blood alcohol level at trial. Your likelihood of a not guilty verdict will become much, much stronger.

Below is a discussion of how a breathalyzer or breath test refusal, and how a breathalyzer failure, will affect your driver’s license in Massachusetts.

Will my License be Suspended a Second Time if I am Later Found Guilty of DUI?

Yes. There are two types of license suspensions in Massachusetts DUI cases. Massachusetts’ DUI laws include a somewhat complicated set of rules involving driver’s license suspensions for DUI. It is easiest to think about these suspensions as the “bookends” of a DUI case. There is a suspension at the beginning of the case for a breathalyzer or breath test failure or refusal, and there is a separate, additional license suspension at the end of the case, if you are found guilty or accept a first offender’s program.

What if my License is Suspended for a Refusal or a Failure, but I am Later Found not Guilty or my Case is Dismissed?

If your Massachusetts DUI case is dismissed, or if you are found not guilty, reinstatement of your license is not automatic. Your DUI attorney must file a motion with the trial court arguing for reinstatement, and the burden shifts to the prosecutor’s office to prove why your license should remain suspended. Our Boston DUI attorney’s office has successfully argued these motions before trial judges upon acquittal.

So What are the License Suspension Periods in Massachusetts for Breathalyzer/Breath Test Refusals, Breathalyzer/Breath Test Failures and DUI Convictions?

Here is a simple guide to Massachusetts for breathalyzer/breath test refusals, breathalyzer/breath test failures and OUI convictions. Keep in mind that breath test suspensions occur at the beginning of an OUI case, regardless of whether you are later found guilty or even if you are later found not guilty. However, our Boston DUI attorney’s office can obtain a court order that the RMV restore your license before this suspension ends, in the event that your are found not guilty of DUI or your DUI case is dismissed.

Failing a Breathalyzer/Breath Test When Arrested for Operating Under the Influence:

• If you are 21 years or older and register a BAC of .08 or greater your license or right to operate will be suspended for 30 days. This, once again, is a separate suspension of your license from the later suspension if you are found guilty, or plead guilty to OUI.

• If you are between 18 and 21 and register a BAC or .02 or greater, your license or right to operate will be suspended for 30 days plus 180 days. You can participate in a Youth Alcohol Program (YAP) and the RMV can “waive,” or cancel the 180 day suspension in certain circumstances when you enroll in the program. Our Boston DUI attorney’s office can assist you in taking advantage of this waiver.

• If you are under 18, there are further enhanced penalties for breathalyzer failures: A driver under 18 faces a one year suspension for a breathalyzer failure. This suspension can be reduced to 180 days upon entry into an alcohol treatment program approved by the Registry of Motor Vehicles.

Refusing a Breathalyzer/Breath Test When Arrested for Operating Under the Influence:

Breathalyzer/Breath Test Refusal Penalties in Massachusetts for Drivers Over 21:

• If you are over 21 and your refuse the breathalyzer/breath test and have no prior OUI convictions your license will be suspended for 180 days.

• If you are over 21 and your refuse the breathalyzer/breath test and have one prior OUI conviction your license will be suspended for three years.

• If you are over 21 and your refuse the breathalyzer/breath test and have two prior OUI convictions in Massachusetts your license will be suspended for five years.

• If you are over 21 and your refuse the breathalyzer/breath test and have three or more prior OUI convictions your license will be suspended for life.

Breathalyzer/Breath Test Refusal Penalties in Massachusetts for Drivers Under 21:

• If you are under 21 and your refuse the breathalyzer/breath test and have no prior OUI convictions your license will be suspended for three years.

• If you are under 21 and your refuse the breathalyzer/breath test and have one prior OUI conviction your license will again be suspended for three years.

• If you are under 21 and your refuse the breathalyzer/breath test and have two prior OUI convictions in Massachusetts your license will be suspended for five years.

• If you are under 21 and your refuse the breathalyzer/breath test and have three or more prior OUI convictions your license will be suspended for life.

Can Breath Test Results be Thrown out at Trial?

Yes. Massachusetts’ DUI laws contain a detailed and strict set of regulations that police departments must follow in the maintenance and use of the breathalyzer or breath test machines. Our Massachusetts criminal attorney’s office has successfully argued for the “suppression” or throwing out of breath test results and other evidence when police departments have not followed these very important rules.

Can I Appeal if my License is Suspended for a Breathalyzer/Breath Test Refusal?

Yes. You are entitled to a Registry hearing for a breathalyzer/breath test, but you must appear at a Registry of Motor Vehicles Office (RMV) within 15 days of the refusal. These hearings are only conducted at the Boston branch office. To win at appeal, there are three issues that can be challenged during the hearing:

• The police officer did not have reasonable grounds for the OUI arrest.
• You were not placed under arrest.
• You did not truly refuse the Breathalyzer.

Our criminal defense attorney’s office can represent you at all stages of you DUI/OUI case, including at the Registry of Motor Vehicles and before a judge and jury.

Ok, so Those are the Breathalyzer Suspensions, Will my License be Suspended Again if I am Found Guilty or Plead Guilty to DUI?

Yes. Massachusetts’ strict DUI laws provide for a separate license suspension at the end of your case if your are found guilty, plead guilty or receive a continuance without a finding (“CWOF”) under the first offender program (G.L. Ch. 90 Sec. 24D). Here is a breakdown of those license suspensions:

• If you are over 21 have no prior OUI convictions your license will be suspended for 45-90 days. This is the penalty whether your receiving a “24D’ first offender’s program or are found or plead guilty.
• If you are over 21 and and have one prior OUI conviction your license will be suspended for two years.
• If you are over 21 and have two prior OUI convictions in Massachusetts your license will be suspended for eight years.
• If you are over 21 and have three or more prior OUI convictions your license will be suspended for ten years.
• Your license will be suspended for life for a fifth offense and thereafter.
• Your license will be suspended for life if you have a prior conviction of motor vehicle homicide that involved drunk driving.

How Long Will My License Be Suspended if I Am Under 21 and am Found Guilty or Receive a First Offender’s Disposition?

• If you are under 21 and have no prior OUI convictions your license will be suspended for 210 days to one year.
• Thereafter, license suspensions are the same for under 21 drivers and over 21 drivers (see above).