Should I take the Breathalyzer test when pulled over and what if I refuse?

This particular question is not as easy to answer as it may seem.  If a driver refuses to take the Breathalyzer test, it is an automatic 6 month license suspension. Drivers under age 21 face a 3 year license suspension. Drivers with prior OUI offenses on their record face increased sanctions between 3 years and a lifetime loss depending on how many priors you have. There are no hardship licenses for  suspensions resulting from breath test refusals. If you take and fail the test, there is a 30 days license suspension. The suspension for a failed test is significantly less because the law is intended to encourage drivers to take the test.

Complicating matters is that since 2017, there have been numerous legal challenges to the admissibility of the main Breathalyzer model used in the state, the Draeger 9510 Alcotest. There were widespread issues with the calibration of these machines. Currently, most, if not all, District Attorney’s Offices are not using the Breathalyzer test results in Court. For as long as that remains, there is actually no harm in taking the test. The problem with that assumption, however, is that we do not know for how much longer that will remain the situation. A failed breath test does help the prosecution prove their case and it has always been my opinion that a Defendant should not take any action that will help the police and prosecutors prove the case against them.

In the meantime, however, Massachusetts police have been instructed to use more subjective means of determining intoxication. Police must rely on their personal discretion to assess a driver’s level of intoxication. Such evidence may be presented in court, but it is far from scientific and there are numerous ways skilled defense attorneys can discredit this type of testimony.

In short, unless and until breath test results are once again be submitted by the Prosecutors in Massachusetts, there is no harm. Once that changes, then my opinion is that it would be best not to take the test unless you have not had any alcohol within 24 hours of taking it.

If you are facing an OUI case, or believe your case is affected by the Draeger 9510 Alcotest controversy, call our office today for a consultation.

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