The Breath Test Dilemma

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One aspect of Massachusetts criminal law that can sometimes affect the lives of decent, otherwise law-abiding citizens pertains to “operating under the influence of intoxicating liquor” (OUI).  A question criminal defense attorneys are asked all the time is: “If I ever get busted for OUI (‘drunk driving’) should I take a breath test?”

First of all, in Massachusetts police officers have “preliminary” breath test devices which aren’t currently admissible in court, and we’re not talking about those.  We’re talking about the machines in the police station and the post-arrest decision whether or not to take the test.  The “legal limit” in Massachusetts is a blood-alcohol content (BAC) of .08 (percent) or above while driving.  Often the test is not administered until an hour or more after driving (our state’s highest court has indicated that any period within three hours of vehicle operation is admissible as within a “reasonable time”), which could mean a rising or falling BAC (we won’t get into the science of metabolizing alcohol over time here).

Refusal to consent to the breath test, although currently not admissible as evidence of guilt at trial, nevertheless results in a license suspension which, for first offenders, is at least 180 days (it’s three years if you are under 21 or you’ve been convicted of OUI once before and it gets worse from there).  Take the test and “fail” (.08 BAC or above), on the other hand, and the license is suspension is only 30 days at the most.  Drivers under age 21 face additional license consequences for either refusing the test or taking it and registering a BAC of “.02” or above.  Regardless of age, anything above a BAC reading of “.05” will normally still result in a prosecution after arrest.

Many attorneys adopt a strict, “never take the test” position on this issue.  Nothing wrong with that – it’s the “safe” position in that it deprives the state the opportunity to get its hands on forensic evidence which could weaken a defense since, even if you’re not “impaired” (which is one way to express the legal standard), a BAC of .08 or above is enough for a jury to convict.

But this is a complicated issue, and a lot depends on how important your driver’s license is to you (is it a must for work? do you have kids or elderly parents who depend on your driving?).  For example, if it is your “first time” and you know you’re not only “impaired”, but pretty drunk, you may want to avoid the 180 day suspension and take the test.  This is because chances are good you won’t want to go to trial (delay and expense are factors to weigh), and if the case is resolved quickly by virtue of a plea, the usual loss of license is 45 (additional) days and you’re eligible for a 12 hour “hardship” (for work or education purposes) license within 3 business days of the resolution — in other words, you could be “back on the road in no time”.

A second or subsequent offense presents a different dilemma. For example, loss of license for convicted second offenders is two years (plus the dreaded “ignition interlock” [IID] breath test device for which you must pay to install and maintain to qualify for license reinstatement).  Refuse the test and it’s another three years if you end up convicted.  Take the test and fail, it’s a 30 day suspension, after which you’re eligible for reinstatement (with no IID, at this point) pending your trial.  Tougher call for sure, and it would probably depend on how important your license is in the short vs. long term since a breath test failure inevitably diminishes your chance for a “not guilty” after trial.  Once you’re beyond “second offense” territory (and where a third offense conviction is a felony carrying a mandatory 150 day jail sentence and 8 year license loss), it is probably better to refuse the test and expect to go to trial.

In any event, if you are in the unfortunate position of having been arrested and charged with OUI, you should “lawyer up” ASAP so that you’ll know your options and can make the best decisions for your personal situation.  We offer free initial consultations which, even if you decide not to hire legal counsel (usually not a good idea), will provide you with useful information.

“Disclaimer:  The above information constitutes an opinion pertaining to general legal principles and should not be considered legal advice.  Every situation is different and fact-dependent, and one should consult with legal counsel for advice pertaining to their specific circumstances.”