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Massachusetts OUI-Breathalyzer Test Refusal

There are a lot of theories out in the public concerning a person’s ability to refuse a breathalyzer test if they have been arrested on suspicion of an OUI in Massachusetts. First of all, Massachusetts is an implied consent state. Therefore, if you have been arrested for an OUI based upon probable cause, you must consent to a blood or breathalyzer test to determine your blood alcohol content (BAC). If you refuse the test, there are consequences. If you initially refuse the breathalyzer the officer will warn you that a refusal will result in a minimum 180-day driver’s license suspension. A refusal after this warning will result in your license being taken from you by the officer, and the DMV being notified.

The legal limit in Massachusetts is a BAC under .08%. This is an extremely low threshold, and certain individuals can have a BAC over .08% after a single beer or two. The Massachusetts legislature has made penalties associated with a breathalyzer refusal to be severe. As mentioned above there is a mandatory 180-day license suspension for a first refusal. If you were to be stopped for a subsequent OUI charge the suspension periods become more extreme. For example:

For a Driver 21 years of age or older the suspensions are as follows:

-No Prior OUI Offense:                      180 Day Suspension

-1 Prior OUI Offense:                         Three Year Suspension

-2 Prior OUI Offenses:                       Five Year Suspension

If you refuse a breathalyzer test after two prior OUI offenses, your licenses will be suspended for life. However, while not guaranteed, if you win your OUI case, your attorney can ask the judge to reinstate your suspended license, since the underlying charge was found to not be proper.

At this point, you are likely asking why you would ever refuse to take the breathalyzer test. Well, your refusal to take the test cannot be admitted into evidence during any criminal matter. The prosecution is unable to mention to the judge or jury that you refused the breathalyzer following your arrest. It is a belief among defense attorneys that many jurors find it difficult to find an individual guilty when there was no mention of a failed test. Of course, this is based upon the idea that were no other aggravating circumstances concerning your arrest, such as causing property damage, presence of drugs and/or weapons.

A failed breathalyzer test is strong evidence of guilt concerning an OUI charge. Without a breathalyzer test, the prosecution will need to look at outside circumstances, the testimony of the police officers, and potentially field sobriety tests to offer evidence of impaired driving to the judge or jury.

Purpose of Field Sobriety Tests

You have likely heard about police field sobriety tests. I am sure you have seen the infamous walk in a straight-line test most movies and television shows portray. Police officers have many different field sobriety techniques, from observing your behavior and body language, to your coordination, to a portable breath test. All of these field tests are the Police Officer’s means to gather probable cause to make an arrest.  The most common field sobriety tests are the horizontal gaze nystagmus test, the walk and turn test, the alphabet test, the finger to nose test, the counting test, and the one-legged stand test.

However, did you know you have a right to refuse the Officer’s request? The Massachusetts Supreme Judicial Court has held that a person’s refusal to perform field sobriety tests cannot be used against them as evidence. Commonwealth v. McGrail, 419 Mass. 774 (1995). If you refuse a portable breath test, you will normally be fined. Your refusal also, in most circumstances, cannot be used against you in any subsequent court matter. Even if you are arrested and taken to the police station you can still refuse the calibrated blood alcohol test.  If you refuse this test, the consequence will usually be a suspended driver’s license. However, if there is no subsequent DUI conviction the license suspension is often reversed.

It is important to remember the following point. Without field sobriety tests and without breathalyzer tests the prosecutor, at trial, may be limited solely to the Police Officer’s subjective observations. With proper representation, the lack of evidence can become a substantial hurdle for the prosecution to overcome.

Admissibility of Field Sobriety Tests.

Most field sobriety tests are inadmissible in court. The majority of field sobriety tests lack scientific reliability. The tests are subjective. Most importantly the field sobriety tests are not probative of guilt and should therefore not be mentioned in front of a jury.

The alphabet, finger to nose, and counting test are not approved by the National Highway Transportation Safety Administration (NHTSA) for court use. A defense attorney should therefor move to exclude such evidence before presentation to a jury.

The NHTSA has approved the horizontal gaze test, walk and turn test, and one-legged stand test for court approval. However, there are methods to properly attack the validity and admissibility of such tests. The NHTSA has also listed eight indicators of impairment for officers to look for concerning the walk and turn test. Similarly, the NHTSA has noted four indicators concerning the one-legged stand test.

There have been important court holdings concerning the horizontal gaze test. The Massachusetts Supreme Judicial Court held that the horizontal gaze test cannot be admitted into evidence without a showing of the test’s reliability and that the test was administered by someone properly qualified to do so.  419 Mass. 774 (1995). Commonwealth v. Sands, 424 Mass. 184 (1997). In most circumstances, the prosecution is unable to meet the necessary standards held in the Sands decision, and therefore the test’s results become inadmissible.

Lake Shore Legal, LLC

If you have been charged with an OUI contact Lake Shore Legal today. Our attorneys can analyze the specific facts that led up to your arrest. Further, our attorneys can explain what, if any, field sobriety test evidence may be admissible in court. As mentioned above, with proper representation and zealous advocacy, many of the approved field sobriety testing methods can be attacked and potentially excluded from evidence. Additionally, if you refused a breathalyzer test, and are acquitted at trial of the OUI charge, our attorneys can make the necessary and proper requests to challenge the DMV driver’s license suspension  Contact us today. (508) 943-7800

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