Should You Refuse a Breathalyzer in Massachusetts? The Answer Is More Complicated Than You Think
Should you take or refuse a breathalyzer if you are suspected of OUI in Massachusetts?
There is no honest one-word answer that works for every driver.
Refusing an evidentiary breath test may deprive the prosecution of an important piece of evidence, and Massachusetts generally does not permit the prosecutor to tell the jury that the driver refused. But refusal also triggers an immediate license suspension that begins at 180 days for many drivers and may extend for years—or even life—depending on age and prior OUI history.
Taking the test presents the opposite risk. A result of .08 or greater ordinarily produces a shorter, 30-day administrative suspension for a driver who is at least 21 years old. But the test result may become powerful evidence in the criminal prosecution.
The question is further complicated by the fact that people use the word “breathalyzer” to describe two different tests:
A portable breath test administered at the roadside before arrest; and
An evidentiary breath test administered at the police station after arrest.
Those tests serve different purposes and produce different legal consequences. Before anyone can sensibly discuss whether a driver should refuse a breathalyzer, we have to be clear about which test we mean.
The Short Answer
If police ask you to take a portable breath test at the roadside, refusing that preliminary test does not trigger the lengthy implied-consent license suspension associated with refusing the evidentiary test at the police station.
If you have already been arrested and are asked to take an evidentiary breath test at the station, refusal ordinarily causes an immediate RMV suspension. For many Massachusetts drivers who are at least 21 and have no prior OUI history, that suspension is 180 days. The period becomes substantially longer for younger drivers and drivers with prior OUI dispositions.
Refusal may make the criminal case harder for the prosecution, but it may also make the practical consequences much harder for the driver.
That is why “always refuse” and “always take it” are both unreliable pieces of advice.
Roadside Breath Test or Station Breath Test?
The first important distinction is where and when the test is offered.
The Portable Breath Test at the Roadside
During an OUI investigation, an officer may ask a driver to blow into a handheld portable breath-testing device. This ordinarily occurs before the arrest.
The officer uses the result as part of the roadside investigation and probable-cause determination. The portable device is a preliminary screening tool. It is not the evidentiary breath-testing instrument used at the police station.
Massachusetts regulations governing evidentiary breath testing specifically state that they do not apply to portable devices used for pre-arrest screening. 501 CMR 2.00
Refusing a portable roadside test does not ordinarily produce the implied-consent license suspension that follows refusal of the station test.
The roadside investigation may nevertheless continue. An officer may rely on driving behavior, observations, statements, field sobriety tests, video, and other evidence in deciding whether probable cause exists to make an arrest.
The Evidentiary Breath Test at the Police Station
The station test ordinarily occurs after the driver has been arrested and brought to a police department or State Police barracks.
This is the test governed by Massachusetts’ implied-consent law. Police are required to provide statutory warnings explaining the license consequences of refusing and of producing a result at or above the applicable limit.
For drivers at least 21 years old, a reported blood-alcohol concentration of .08 or greater ordinarily results in a 30-day administrative suspension. Refusing the test ordinarily results in a much longer suspension, beginning at 180 days and increasing based on the driver’s age and prior history. Massachusetts RMV
This distinction is crucial. Advice about the roadside test should not be confused with advice about the evidentiary test at the station.
What Does “Implied Consent” Mean in Massachusetts?
Massachusetts law treats anyone who operates a motor vehicle in the Commonwealth as having consented in advance to a chemical test after a lawful OUI arrest.
That does not mean police physically force every arrested driver to provide a breath sample. A driver can still say no. But the law attaches an immediate administrative penalty to that decision.
For many drivers who are at least 21, a first refusal results in a 180-day license suspension. The suspension may be significantly longer if the person is under 21 or has prior OUI convictions or alcohol-program assignments.
The police will ordinarily:
Take possession of a Massachusetts license;
Provide written notice of the suspension;
Notify the Registry of Motor Vehicles;
Impound the vehicle for 12 hours; and
Record the refusal on the statutory rights form.
No temporary license is issued.
The suspension begins immediately. It is not postponed until arraignment, and the prosecution does not have to prove the OUI charge before the suspension takes effect.
Can the Prosecutor Tell the Jury That You Refused?
Ordinarily, no.
Massachusetts provides broader protection against the use of refusal evidence than many other jurisdictions. G.L. c. 90, § 24 states that evidence of a driver’s refusal to consent to a blood-alcohol test is not admissible against the driver in a criminal proceeding.
The Massachusetts Supreme Judicial Court has also treated refusal evidence as protected under Article 12 of the Massachusetts Declaration of Rights. The current Massachusetts Guide to Evidence identifies Commonwealth v. Zevitas, 418 Mass. 677 (1994), for the rule that evidence of refusal to submit to a blood-alcohol test is inadmissible. Massachusetts Guide to Evidence § 511
This means the prosecutor generally cannot argue:
“The defendant refused because the defendant knew the test would show intoxication.”
Nor can the Commonwealth ordinarily use the refusal as evidence of consciousness of guilt.
But the fact that refusal is generally inadmissible in the criminal prosecution does not prevent the RMV from imposing the administrative suspension.
The criminal case and the license suspension are separate proceedings.
Does Refusal Help the Criminal OUI Case?
It may remove one important category of prosecution evidence.
Without an admissible breath-test result, the Commonwealth generally cannot prosecute the case on the simple theory that the driver operated with a blood-alcohol concentration of .08 or greater. Instead, the prosecution ordinarily must prove impairment through observations and circumstantial evidence.
That evidence may include:
The manner in which the vehicle was being driven;
An accident;
The odor of alcohol;
The driver’s appearance and speech;
Statements about drinking;
Performance on field sobriety tests;
Open containers;
Body-camera or cruiser-camera recordings; and
Civilian-witness testimony.
A case without a breath-test result is not automatically dismissed. Plenty of OUI cases are prosecuted and tried without chemical evidence.
But the absence of a breath-test number can matter. A jury may be asked to decide whether the driver’s ability to operate safely was diminished based on human observations rather than a reported numerical result.
Those observations can be questioned, compared against the video, and tested against innocent explanations.
Does Taking the Test Make Conviction Automatic?
No.
A breath-test result may be significant evidence, particularly if the prosecution proceeds on the “per se” theory that the driver operated with a blood-alcohol concentration of .08 or greater. But the result does not eliminate the Commonwealth’s burden of proving every element beyond a reasonable doubt.
The defense may still examine:
Whether the original traffic stop was lawful;
Whether the officer unlawfully prolonged the detention;
Whether probable cause existed for the arrest;
Whether the statutory warnings were properly administered;
Whether the breath-test operator was qualified;
Whether the instrument was approved and properly certified;
Whether the required observation period was followed;
Whether the testing sequence complied with Massachusetts regulations;
Whether the driver supplied adequate breath samples;
Whether contamination, medical conditions, or other circumstances affected the test;
Whether the Commonwealth can prove operation; and
Whether the location satisfied the public-way element.
Before a breath-test result may be admitted, the Commonwealth must establish compliance with the applicable testing and certification requirements. The Massachusetts criminal jury instructions recognize that the prosecution must establish the required periodic testing program and that the instrument was working properly. Massachusetts OUI per-se jury instruction
Massachusetts has a particularly sobering history on this subject. Systemic failures in the Office of Alcohol Testing led to the exclusion of years of breath-test results from criminal prosecutions. Breath tests administered on Draeger Alcotest 9510 instruments between June 2011 and April 18, 2019, were ultimately subject to a statewide exclusionary remedy. Massachusetts breathalyzer litigation information
That history does not mean every current breath test is unreliable. It does demonstrate why a breath-test result should be investigated rather than accepted on faith.
The Practical Tradeoff: Evidence Versus Driving Privileges
The real difficulty is that the criminal and licensing consequences point in opposite directions.
If the Driver Refuses
A refusal may deny the prosecution a numerical breath-test result. Massachusetts generally prevents the prosecutor from using the refusal itself as evidence of guilt.
But the driver faces an immediate and potentially lengthy suspension.
A person who depends on driving for work, childcare, medical appointments, or the care of a family member may experience the suspension as the most immediate consequence of the case.
If the Driver Takes the Test
If the result is below .08 for a driver who is at least 21, the person may avoid the 30-day breath-test failure suspension—although the police may still pursue the OUI charge based on alleged impairment.
If the result is .08 or higher, the driver generally receives a 30-day administrative suspension. That is considerably shorter than a typical first-refusal suspension.
But the prosecution may now possess numerical evidence supporting a per-se OUI theory.
The choice therefore cannot be understood simply as “cooperate” or “do not cooperate.” It is a choice between different legal risks, often made by a frightened and exhausted person at a police station in the middle of the night.
Will Police Let You Call a Lawyer Before Deciding?
A driver should not assume there will be an opportunity to obtain individualized legal advice before making the breath-test decision.
The Massachusetts breath-test operator’s materials state that use of the telephone may be postponed until the driver’s consent or refusal has been documented, although telephone access must otherwise be provided within the required period. Massachusetts Breath Test Operator’s Manual
In practical terms, the driver is often required to decide before speaking with counsel.
That is one reason it is useful for Massachusetts drivers to understand the distinction and consequences before they ever encounter the question.
What If the Machine Says You Refused, but You Tried to Take the Test?
Not every recorded refusal consists of a driver clearly saying, “No.”
The police may report a refusal when the driver:
Does not provide what the instrument considers an adequate breath sample;
Stops blowing before the officer instructs the person to stop;
Produces inconsistent samples;
Fails to complete the testing sequence;
Delays or conditions consent;
Becomes physically unable to continue; or
Is recorded as noncompliant by the operator.
That does not necessarily mean the legal requirements for a refusal suspension were satisfied.
Medical conditions, respiratory limitations, language barriers, confusion, equipment problems, or inadequate instructions may become important. The video from the booking room and breath-test area may show whether the person was refusing, trying unsuccessfully, asking legitimate questions, or physically unable to complete the test.
The label on the police paperwork is not the end of the inquiry.
How Do You Challenge a Massachusetts Refusal Suspension?
A person seeking to contest a chemical-test refusal suspension must act quickly.
The Massachusetts RMV states that the driver is entitled to an RMV hearing within 15 days of the refusal. Chemical-test refusal hearings are presently initiated through the Boston/Haymarket RMV process. Massachusetts RMV suspension-hearing information
The issues at a refusal hearing are limited. They generally concern whether:
The officer had reasonable grounds to believe the person operated under the influence;
The person was placed under arrest;
The person refused the requested chemical test; and
The person was properly advised of the consequences.
If the RMV upholds the suspension, the driver may seek judicial review in the District Court. Massachusetts has a specific standing order governing petitions for review of refusal suspensions. District Court Standing Order 1-08
The 15-day period is short enough that waiting until the first pretrial conference may forfeit an important opportunity.
Can You Get a Hardship License During a Refusal Suspension?
A driver should not assume that a hardship license will be immediately available during a chemical-test refusal suspension.
The rules governing hardship relief are complex and depend on the type of suspension, the person’s prior history, the court disposition, and other statutory requirements. A refusal suspension may create substantially different hardship-license problems from the 30-day suspension caused by a breath-test failure.
This is one of the most important practical reasons why a universal “always refuse” rule can be dangerously incomplete. Advice that considers only the criminal trial may ignore the person’s ability to work, support a family, or meet medical obligations.
The license consequence must be evaluated as a separate legal problem.
What If You Have a Commercial Driver’s License?
The stakes are higher for a CDL holder.
Massachusetts’ statutory warning advises that refusing the evidentiary test may disqualify a person from operating a commercial motor vehicle for one year to life. A refusal involving a vehicle transporting placarded hazardous material can produce a three-year disqualification, and prior disqualifying offenses may result in lifetime consequences. Massachusetts statutory rights and consent form
Those consequences may apply even when the driver was operating a personal vehicle rather than a commercial vehicle.
A CDL holder should therefore treat both the criminal charge and the administrative suspension as threats to the person’s livelihood.
What If You Are Under 21?
The refusal consequences are also more severe for younger drivers.
A driver under 21 faces different suspension periods and a lower administrative blood-alcohol threshold. The RMV states that a driver under 21 who registers .02 or greater may receive an administrative suspension. Refusal consequences for younger drivers begin at substantially longer periods than for many drivers over 21. Massachusetts RMV information for drivers under 21
A young driver may therefore face overlapping OUI, underage-driver, and alcohol-education consequences.
So, Should You Refuse?
The most accurate answer is that the decision depends on circumstances the driver may not be able to assess at the police station.
Relevant considerations include:
Whether the request concerns a roadside portable test or the evidentiary station test;
The driver’s age;
Prior OUI convictions or program assignments;
Whether the driver holds a CDL;
The driver’s actual alcohol consumption;
How much time has passed;
Medical conditions that might affect testing;
The importance of continued driving to the person’s livelihood;
The likely suspension period; and
The strength of the evidence already available to the police.
From the perspective of the criminal prosecution alone, refusing may prevent the Commonwealth from obtaining a significant piece of numerical evidence.
From the perspective of preserving driving privileges, refusal may produce a far longer and more difficult suspension.
Both propositions are true. Any honest answer must account for both.
Frequently Asked Questions About Massachusetts Breathalyzer Refusals
Is It Illegal to Refuse a Breathalyzer in Massachusetts?
Refusing the evidentiary chemical test is not ordinarily charged as a separate criminal offense. It does, however, violate the implied-consent law and trigger an immediate administrative license suspension.
Does Refusing Mean I Will Be Found Guilty of OUI?
No.
A refusal is not a conviction, and the refusal itself is generally inadmissible in the criminal prosecution. The Commonwealth must still prove the OUI charge beyond a reasonable doubt using admissible evidence.
Can the Prosecutor Tell the Jury I Refused?
Ordinarily, no. Massachusetts law generally prohibits the prosecution from introducing evidence that a driver refused a blood-alcohol test.
Will My OUI Case Be Dismissed If I Refused?
Not automatically.
The Commonwealth may proceed using officer observations, field sobriety testing, driving behavior, admissions, video, civilian witnesses, and other evidence.
How Long Will My License Be Suspended for a First Refusal?
For many drivers who are at least 21 and have no prior OUI history, the refusal suspension is 180 days. Age and prior OUI convictions or alcohol-program assignments may increase the suspension substantially.
How Long Is the Suspension If I Take the Test and Fail?
For most drivers who are at least 21, a result of .08 or greater causes a 30-day administrative suspension. Other consequences may apply to younger drivers, CDL holders, and drivers with additional suspensions.
Can I Challenge the Refusal Suspension?
Yes, but the deadline is short. The RMV states that a chemical-test refusal hearing must be pursued within 15 days of the refusal.
What If I Tried to Take the Test but Could Not Complete It?
An unsuccessful testing sequence may be recorded as a refusal, but that conclusion can sometimes be contested. Video, operator testimony, medical evidence, instructions, and the instrument records may be important.
Is the Roadside Breath Test the Same as the Station Breath Test?
No.
The portable roadside test is a pre-arrest screening device. The evidentiary station test is governed by the implied-consent law and carries administrative suspension consequences if refused.
Can I Speak to a Lawyer Before Deciding?
Do not assume that police must delay the test so that you can consult a lawyer. In practice, the consent-or-refusal decision may be required before telephone access is provided.
Refused or Failed a Breath Test in Brockton? Call Benzaken, Sheehan & Wood, LLP
A breath-test decision made in a police station may affect both the criminal case and your ability to drive for months or years. The paperwork may call the result a “refusal” or “failure,” but those labels do not answer whether the police followed the law, whether the suspension can be challenged, or whether the evidence is admissible in court.
Benzaken, Sheehan & Wood, LLP is a Brockton criminal-defense firm experienced in the factual, scientific, and legal issues that arise in Massachusetts OUI cases. We examine the stop, the arrest, the statutory warnings, the breath-testing process, the instrument records, the video evidence, and the separate RMV consequences.
If you refused a breath test, recorded a result over .08, or were charged with OUI in Brockton or southeastern Massachusetts, call Benzaken, Sheehan & Wood, LLP at (508) 897-0001 to schedule a confidential consultation.
The deadline for challenging a refusal suspension can arrive long before the criminal case is resolved. The sooner the case is reviewed, the greater the opportunity to preserve evidence and protect both your license and your defense.