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The Facts: Refusing a Breathalyzer and License Suspension in MA

August 31, 2011

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Once upon a time, MA OUI attorneys routinely counseled their clients to never submit to a breathalyzer because of the known limitations of the test. While a breathalyzer may estimate blood alcohol content correctly in some instances, factors like the prevalence of false positives, the difference between breath alcohol levels and blood alcohol levels, and calibration difficulties mean that a breathalyzer test is not always a practical way to determine whether an OUI suspect is capable of safely operating a vehicle. Furthermore, the ability to refuse chemical sobriety tests was seen as a right possessed by all those suspected of OUI infractions.

With the advent of Melanie’s Law, however, some OUI attorneys in the state began modifying their recommendations. Why? Under the Massachusetts implied consent law (which existed prior to Melanie’s Law), the simple act of applying for a driver’s license or driving in the state with an out-of-state license implies that motorists agree to submit to chemical sobriety testing if arrested for operating under the influence of alcohol. Implied consent meant that refusing to submit to a breathalyzer could carry a penalty, and in Massachusetts after Melanie’s Law, the penalty became immediate license suspension, even for first-time offenders and even if not ultimately convicted, with harsher penalties than existed before for drivers under 21.

  • 1st offense OUI: Suspension of 180 days
  • 2nd offense OUI: Suspension for 3 years
  • 3rd offense OUI: Suspension for 5 years
  • 4th offense OUI: Suspension for life
  • Drivers under 21 years of age: 3 year license suspension

Now an MA OUI attorney may suggest submitting to the breathalyzer test or not, because the penalties in place for refusal plus new penalties for convictions have created an atmosphere where there’s no one right or wrong way to proceed. For example, under current Massachusetts OUI law, a BAC of .08 or above is a “per se” violation of the law carrying civil and criminal penalties including an automatic 30-day license suspension plus criminal penalties, but refusing the breathalyzer test (even for first offenders before conviction) carries an immediate 180-day suspension, usually with no ability to get a hardship license during the term of the suspension.

It is important to note that a verdict of not guilty in a Massachusetts OUI trial where the defendant refused chemical sobriety testing DOES NOT result in the automatic restoration of driving privileges. In OUI cases where charges were overturned, the defendant must still petition the court for restoration of his or her driver’s license. While there is a legal presumption that the license should be restored, the judge has the discretion to restore the license or deny the petition.

This is why it is critical that anyone who is charged with OUI in Massachusetts hire an attorney who is willing and able to untangle the knotted connection between breathalyzer test refusal, implied consent, and Melanie’s Law. An experienced DUI Defense Lawyer may advise a client not to take a breath or blood test under any circumstances as you are not required to furnish evidence against yourself. However, a refusal may have devastating effect upon your driver’s license depending on your prior record. Quite literally, sometimes the only way to get your license back is to fight the case to an outright dismissal or finding of not guilty.

OUI attorney Michael Bowser has years of experience successfully defending those accused of drunk driving in Massachusetts and New Hampshire and seeing license suspensions overturned. If you have been charged with an OUI in Massachusetts or New Hampshire or have questions about OUI penalties in either state, it is vital that you talk to representation who understands the law. Call Attorney Michael Bowser today at 1-888-5BOWSER to discuss OUI penalties and your individual circumstances.

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