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To Blow Or Not To Blow Refusing The Breathalzyer In Massachusetts

One of the most common questions asked of a DUI Lawyer is whether or not someone should take the breathalyzer. Unfortunately, the answer to this question is.... it depends. There is no bright line or definitive answer. Under Melanie's Law, if your refuse the breathalyzer in Massachusetts, your license or right to operate a vehicle will be automatically suspended for 180 days. This suspension will go into effect immediately. If you are under 21 years old at the time of the refusal or if you have a previous conviction for OUI or an alcohol related driving offense, your license will be suspended for 3 years. If you have been twice previously convicted of OUI or certain other alcohol related driving offenses, your license will be suspended for 5 years. Three or more prior convictions for OUI or certain other alcohol related driving offenses will result in a lifetime revocation of your license, with no ability to get a hardship or work license.

If you refuse the breathalyzer, no breath test will be taken and your refusal cannot be used against you at trial. The jury will not hear that you refused the breathalyzer and the prosecution will not have breath test evidence to prove their case; this will increase your chances of winning. The lack of breath test evidence can make the difference between winning and losing. However, refusing the breath test does not mean that you cannot be charged or found guilty based on the officer's observations.

In Massachusetts if your breathalyzer reading is .05 or less, there is a presumptive inference that you were not under the influence of liquor and the police are required to immediately release you from custody. If your BAC reading is more than .05 but less than .08, there is no presumption that you were under the influence of alcohol. A reading of .08 or greater is per se evidence that you were under the influence of liquor. Also, a reading of .08 or greater will result in a license suspension of at least 30 days.

Individuals under 21 years of age who register a breathalyzer reading of .02 or above face additional administrative license suspensions, even though such a reading will not result in criminal prosecution for drunk driving.

It has been generally accepted that an individual metabolizes .015 BAC or one drink per hour. Using this knowledge, you can try to estimate your BAC level; this may help you in deciding whether or not to take the breathalyzer.

If you decide to take the breathalyzer, there is a chance that the results will be inadmissible because the police did not follow proper chemical breath test administration or breathalyzer maintenance procedures. This aspect of the case should always be thoroughly investigated.

If you refuse the breathalyzer, you are entitled to have a hearing at the Registry of Motor Vehicles in Boston on the question of whether the Registry should suspend your license. You only have 15 days from the date of suspension to request a breathalyzer suspension hearing. This hearing is limited to questions regarding whether the police had reasonable grounds to believe that you were committing the crime of OUI, whether you were arrested, and whether you refused the breathalyzer. Contrary to popular belief, it is possible to win at these hearings. If the Registry decides against you, within 30 days you can appeal to District Court.

If you are confident that you are going to "plead out" and you do not want to deal with a license suspension for six months or longer, it might make sense to take the breathalyzer test. On the other hand, if you are going to take your drunk driving case to trial, it usually makes sense to refuse. If you win at trial or the case is dismissed, your breathalyzer refusal suspension does not automatically go away. However, so long as there are no other alcohol related charges pending, you have the right to a hearing on the question of whether you should get your license back. There is a rebuttable presumption at these hearings that your license should be restored. Unless the prosecution establishes that restoring your license would more likely than not endanger the public safety, you are entitled to get your license back.