Should I take the breathalyzer in Massachusetts?

If I’ve been arrested for operating under the influence of alcohol in Massachusetts, should I take the breathalyzer?

Hi everyone, Anthony Riccio here, founding attorney of Ricco Law, a Massachusetts personal injury and criminal defense firm with offices in Quincy, and Attleboro Massachusetts. I’m going to spend the next couple of minutes addressing the topic of, whether or not to take the breath test after you’ve been arrested for drunk driving. Now, before I get into the answer and my explanation, I want to be clear that this only applies to those arrested for drunk driving in Massachusetts. So, my answer does not apply to any other state. The reason for that is the laws and statutes surrounding drunk driving are different in every state. So, while what I’m about to tell you applies to the drunk driving laws in Massachusetts, it may or may not apply to the laws surrounding drunk driving in any other state.

So, my answer to the question of whether or not to take the breath test after you’ve been charged for drunk driving is, “No.” You should not take the breath test after you’ve been arrested for drunk driving in Massachusetts. I’m going to give three reasons why I do not think it’s a good idea to take the breath test in Massachusetts. Number one, it is not a crime to refuse the breath test in Massachusetts. Whereas in some states, if you get arrested for drunk driving and then refuse to take the breath test, it is a separate criminal offense for the breath test’s refusal. In Massachusetts, you do not subject yourself to an additional criminal offense by refusing to take the breath test. The refusal is noted, but it does not result in a crime or a criminal offense for refusing to take the breath test.

Number two, if you refuse to take the breath test and decide to go to trial on your case, the prosecution can not introduce any evidence related to your refusal or related to the breath tests. The prosecution cannot talk about the breathalyzer in their opening or closing. None of the police officers can testify about the breath test in any way, shape, or form. And, if the jury asks the judge about the breath test, the judge will simply tell the jury that, “Their verdict can only be based on the evidence that has been presented to them, and they cannot consider any evidence that was not presented at trial.” The third reason you should not be taking the breath test is, even if you pass the breath test… Bypassing the breath test, I mean the results come back below 0.08, which is the legal limit in Massachusetts.

So, even if you come in below a 0.08, there’s a strong chance the police are still going to charge you with operating under the influence. And, taking that a step further, even if you’re below the legal limit, you can actually still be found guilty or convicted of drunk driving in Massachusetts, despite a reading below the legal limit. The reason for that is that in Massachusetts, the prosecution can prosecute drunk driving cases under two theories. The first theory is related to the breath test, simply that the results of the breath tests were at a 0.08 or higher, being above the legal limit. And the second theory, the prosecution can proceed in a drunk driving case, is the impairment theory. So, basically what that means is, the prosecution can argue to a jury or to a judge that this person’s ability to drive their car safely is impaired, or it’s been reduced due to them drinking alcohol. So, in those cases where the prosecution goes on the theory of impairment, they could actually proceed on that case if you blew a 0.06 or a 0.05.

And, you could still get convicted of the crime, despite the fact that your breath test was under the legal limit if the prosecution can convince the judge or the jury that despite the reading under the legal limit, your ability to drive your car safely was impaired or reduced based on your alcohol consumption. So for those three reasons, one, it’s not a crime to refuse the breath test, two, your refusal of the breath test can not be introduced against you at trial, and no evidence of the breath tests can be introduced at trial if there’s been a refusal. And three, in Massachusetts, you can still be prosecuted and convicted of operating under the influence of alcohol, even though your breath test was under the legal limit of 0.08.

That is not to say that despite everything that I just discussed, there is not, or there won’t be some downside to refusing, to take the breath test. The most obvious negative or downside to refusing the breath test is that you subject yourself to lengthier license suspensions. So, for example, in Massachusetts, if you’re arrested and charged with a first offense of drunk driving, and you take the breath test but fail it, your license will be suspended for 30 days, right off the bat. If you are charged with first offense drunk driving and refuse to take the breath test, your license gets suspended for 180 days, right off the bat. And, in the event of a breath test refusal, if you’re facing a subsequent offense, meaning you’re charged with a second offense, drunk driving, or third offense, or anything higher than that, the length of the initial license suspension increases with each subsequent offense.

One additional kind of note on the license suspensions is those suspensions that I just discussed apply to individuals that are of the legal drinking age, meaning they’re 21 years of age or older. If you are under the age of 21, the license suspensions are much longer. For example, if you’re under 21 and charged with first-offense drunk driving, you refused the breath test, your license is going to be suspended for three years. So, while I would recommend that you refuse to take the breath test, if you’ve been charged with drunk driving in Massachusetts, the refusal will result in lengthier license suspensions.

So with that being said, sometimes I get a follow-up question of, “Well, is there any circumstance in which it’s okay to take the breath test?” In my opinion, the only circumstance where I would advise someone to take the breath test is if they have had absolutely nothing to drink on the day in question. Other than that, I don’t see any scenario where it would be advisable to take the breath test. So, if you find yourself in the situation where you’ve been charged with operating under the influence in Massachusetts, and you have some questions, feel free to reach out to my office to schedule a consultation, and I’d be happy to meet with you.