Breathalyzer Test: “To Take or Not to Take”

You have just found yourself in an awkward position, a police officer has just asked you (or told you) to take a Breathalyzer Test, now what do you do? You have two options. You can either submit to the test or you can say no. Your decision, regardless of what it is, will have consequences, and it is important to understand those consequences so that you will be in a better position to make your decision fruitful. Each scenario is different and, therefore, it is important to seek the advice of an attorney immediately before taking the test or saying no.

One question that is asked a lot is whether or not an individual has “a right” to refuse a Breathalyzer Test. Point in fact, you do have the right to say no; however, case law is very clear that it is not a constitutional right.

Massachusetts General Laws governing Breathalyzer Tests states, “Whoever operates a motor vehicle upon any way or in any place …, shall be deemed to have consented to submit to a … analysis of his breath … in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor ….” G.L. c. 90 § 24(1)(f)(1). This is what is known as an implied consent statute. Simply put, unless you say no, you will have been deemed to consent to the test.

The statute goes on to state, “If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the Commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended … for a period of 180 days ….” It is important to note that this period of suspension will vary based on previous convictions of driving while intoxicated as well as any dispositions of a continuance without a finding (CWOF). Under Melanie’s Law, Massachusetts has a lifetime look back period to determine the penalties. This means you could be 60 years old, and if you had an operating under the influence charge when you were 25, it will count towards the penalty you face now.

With respect to the 180-day suspension, hardship licenses are available in certain circumstances. If this is your first offense, you may qualify for a hardship license. If this is your second offense, and your first offense occurred more than 10 years ago, you may also qualify for a hardship license.

So what does this mean? Let’s look at an example. If this were your second offense, you are 21 or older and your first offense was within ten years, your license would be suspended for a period of 3 years. However, we cannot stop there. If we assume that you were convicted on this new offense, your license would be suspended for 2 years. Under the general laws of Massachusetts, the conviction runs on and after the refusal suspension (which begins on the date of refusal). This means that your license would effectively be suspended for 5 years. On a side note, an individual’s refusal to take a breath test is not admissible as evidence at a trial.

What if you do decide to take the Breathalyzer Test? There are several conditions to the admissibility of the results of a Breathalyzer Test, which the prosecutor must prove compliance with before the evidence will come in at a trial. There is a high likelihood that this evidence will come in at trial and, therefore, a jury will be able to use this as substantive evidence as to whether or not you were operating under the influence. This can pose some obstacles for your case.

The purpose of this blog is not to advocate for one position over the other, rather it is meant to briefly compare the consequences of taking a Breathalyzer Test and refusing to take it. If you have been stopped by the police for operating under the influence, contact The Law Office of Barry J. Bisson immediately before taking a Breathalyzer Test in order to discuss your options.

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