Under the Massachusetts implied consent statute, which is also known as the breathalyzer refusal law, a driver is deemed to have consented to the administration of a breathalyzer or blood test if he is arrested for driving under the influence (DUI) of alcohol. The requirement to take a blood or breath test is only triggered when a person is arrested for OUI and the arresting police officer has reasonable grounds to believe that the individual who is being offered the breath test was operating a motor vehicle while under the influence. The reasonable grounds are usually determined by visible, objective evidence of alcohol intoxication, erratic operation, slurred or unresponsive speech, bloodshot, glassy eyes, poor balance, fumbling with a license or other document, the odor of an alcoholic beverage, and the results of field sobriety tests. Whether the police had reasonable grounds for the administration of the breath test can be challenged at a breathalyzer refusal appeal hearing.
A driver who exhibits the above-listed symptoms of being under the influence cannot be compelled or forced to take the test, and evidence of the breathalyzer refusal may not be used against him in court. If a driver refuses to take the test, the police officer must advise him that his license will be suspended for a minimum of 180 days up to life, depending on the driver’s OUI record. There are additional suspension penalties for CDL license holders. These license suspensions have been characterized as “administrative,” “remedial,” and non-criminal in nature.
In some states, refusing to submit to a chemical breath or blood test is a separate offense for which a driver can be charged. In Massachusetts, however, it is not a crime to refuse to take a breath or blood test after having been arrested for OUI. The only consequence which a driver faces for refusing the breathalyzer is the suspension of his or her license for a period ranging from 6 months to life, depending on the driver’s record. Since chemical test refusal penalties are administrative in nature, the breathalyzer refusal suspension law does not violate the constitutional prohibition against “double jeopardy.” Nevertheless, for a refusal to be valid, the person arrested must be afforded certain breathalyzer rights and given an opportunity to exercise them. A violation of these important rights will result in the elimination of the chemical test refusal suspension.
In Massachusetts, there is no right communicate with a DUI lawyer prior to deciding whether or not to take a breathalyzer test. Administration of the breathalyzer to a person who is unrepresented and who has not consulted with a lawyer does not violate the right to counsel, which is guaranteed by the Sixth Amendment of the Constitution. However, persons arrested for operating under the influence have the right to use the telephone at a police station within one hour of arrival and the police must inform the person arrested of the consequences of refusing the breath test. Given the harsh penalties which breathalyzer refusals can carry, advice to always refuse a breath test may not be as “valid” as it once was. The benefit of refusing to submit to a breathalyzer is that the prosecution will be denied key evidence which it can used to help secure a DUI conviction. The downside to refusing is, of course, the license suspension which the chemical test refusal will trigger. My officer has been extremely successful when it comes to challenging breathalyzer refusal suspensions. I have reduced refusal suspensions and, in some cases, eliminated them completely. Contact me for more information and a free review of your Massachusetts breathalyzer refusal case.
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