Massachusetts’ .08 Law and Breath Test Refusal

April 4, 2012


Before 2003, a BAC level above .08 was considered “evidence but not proof of drunkenness” according to Massachusetts law. That year, however, Massachusetts became the last state in the US to adopt a per se OUI offense where proof of blood alcohol content above the legal limit at the time of driving became enough evidence to prove that a driver was intoxicated and justify an OUI conviction.

Consequently, prosecuting a drunk driving case in Massachusetts became substantially easier with a positive breath test because all that must be proved is that the driver operated a motor vehicle on a public way with a .08 BAC – not that the driver was impaired or driving dangerously. In per se cases, the government gets “two bites at the apple.” They will proceed on the traditional “impaired by alcohol” theory of OUI, and also proceed on a second theory of “per se OUI” when evidence of a breath or blood test is available and admissible. A jury can convict a driver on either theory, or both, but only one OUI conviction is recorded as part of your criminal record and driver’s history.

As a secondary result of the adoption of the .08 law, the State legislature drastically revised the administrative penalties for taking a breathalyzer test at the time of driving versus refusing the test entirely. If you test over the legal limit at the time of arrest, you will only lose your license administratively for 30 days, regardless of whether it is your 1st, 2nd, 3rd, 4th, or 5th offense. However, if you refuse the breathalyzer test, you lose your license for 180 days for a first offense, three (3) years with a prior OUI, five (5) years with two prior OUIs, and for lifetime if you have three (3) prior convictions.

Clearly the Massachusetts Legislature wants to encourage drivers suspected of drunk driving to consent to a breathalyzer test because, as noted above, the prosecution is in a much better position with a breath test. However, in cases where the driver did take a breathalyzer test and was shown to have a BAC above the legal limit, the a qualified DUI Defense lawyer will argue the breath test does not accurately and scientifically reflect a true “blood alcohol” level..

For instance, a breathalyzer test is not a blood test, and the variables that can affect the reported results from a breath test machine include, but are not limited to, body size, sex, absorption and elimination cycles, breath temperature, breathing pattern, volume of breath submitted, reflux and/or heartburn, and hematocrit.

Any good lawyer will tell you never to take the test because you’re essentially providing evidence the prosecution will use against you. But of course, the penalties for refusing, depending on your prior record can be devastating. Interestingly, the only way to eliminate a chemical test refusal suspension (CTR) is to be acquitted of the underlying OUI charge.

So if you find yourself in a situation where you need help, be sure to hire a trial attorney capable of winning an OUI trial for you. The Commonwealth is one of only a very few jurisdictions that does not allow the government to enter evidence of a breath test refusal, so if you exercise your right to refuse, it cannot be used against you at trial.

OUI attorney Michael Bowser has years of experience successfully defending those accused of drunk driving in Massachusetts and New Hampshire. If you have been charged with an OUI in Massachusetts or New Hampshire or have questions about OUI penalties in either state, it is vital that you talk to representation who understands the law. Call Attorney Michael Bowser today at 1-888-5BOWSER to discuss OUI penalties and your individual circumstances.

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