Probably the most common question that a person arrested for a charge of operating under the influence of alcohol (“OUI”) asks is whether they should have taken a breathalyzer or breath test. Of course, the answer is not always so simple.
First, it is important to distinguish between a portable breathalyzer test and the breathalyzer test at the police station. The result of a portable breathalyzer test done at the side of the road is generally not admissible at trial in Massachusetts. Additionally, your decision to take it or not will not have any consequences to your driver’s license.
If you are arrested and booked at a police station for OUI, you will be offered a breath test there as well. The results of this test can be used at trial against you and could be a basis for a conviction of OUI on a “per se” theory. This is where the District Attorney proves its case by showing that your Blood Alcohol Content (“BAC”) was at or above 0.08%, without needing to show impaired driving.
Before making a choice on the breathalyzer you should understand the consequences to your driver’s license. Under what is known as an “implied consent” law, you are deemed to have already consented to taking a breath test if arrested for OUI when you got your driver’s license. As such, refusing to take the breath test will result in an automatic suspension of your driver’s license. If you have never been charged with an OUI before, your license would be suspended 180 days for refusing the test.
On the other hand, if you take the test, and your BAC is measured to be above the legal limit of 0.08%, you could still face a 30-day suspension of your driver’s license.
Beyond these issues, there can be numerous other issues regarding breathalyzer tests. These issues include things such as “deemed” refusals for failure to give a sufficient sample, the reliability of the machine itself, different consequences for CDL drivers or drivers under the age of 21, and even whether the police properly followed the regulations surrounding the administration of the test.
Many issues regarding a breath test can and should be litigated, and you should have an attorney you trust to advise you on the strength of a defense to your OUI charge whether or not you took a breathalyzer test.