Sorry, but I read your other post on this and I'm still not clear on whether you should refuse to take a breathalyzer test if pulled over in Massachusetts for a possible OUI. No offense intended to you, but you and all the other attorney websites seem to waffle a bit on this issue. Can you clarify?
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The Editor, Mark Bernardin, is an attorney living in MA. Please send your suggestions or comments to: TheEditor@malawforum.com
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Take Breathalyzer or not
I think most attorneys who do OUI work counsel against taking the breathalyzer test. The reason I, and apparently other attorneys, waffle a bit is that there really is not a perfect answer. In fact, the answer may depend on the unique circumstances of your traffic stop.
A little background. In Massachusetts, drivers can refuse to take a field sobriety test without any penalty. That is not the case with the breathalyser, however. If you decide to take the breathalyzer and you blow a .08 or higher, on a first offense you will lose your license for 30 days. On the other hand, for the same first offense OUI, if you refuse the test, your license will be suspended for 180 days. So, clearly, the government would like to encourage people to take the test. However, from a criminal defense point of view, a failed breathalyser is a tough nut to crack. It is hard to overcome that evidence at trial. That is why members of the defense bar will often advise against taking the test. Simply put, you have a better chance of beating an OUI charge without breathalyzer evidence. Then, if you succeed in defending against the charge, your attorney can file a motion to reinstate your license and, possibly, get it back in less than the original 180 days.
Some non-attorneys suggest attacking this conundrum with the two drink rule: If you have had two drinks or less, go ahead and take the test. The theory being that, in that situation, it's worth the risk and, if all works out as planned, there is no loss of license. However, the two-drink rule is flawed in that it fails to take into account that no two drinks are the same. Alcohol levels in drinks can vary tremendously. The rule also fails to take into account the different ways in which different people metabolize alcohol. The amount of alcohol found in a person's blood by a breathalyzer after two identical drinks may very depending on a person’s gender, weight, percentage of body fat, fitness-level, when they last ate, etc.
So . . . . best answer: Don't drive after drinking. Beyond that, you have to make the call depending on the facts surrounding the traffic stop, how well you can deal with losing your license for any period of time, and, perhaps, whether you are feeling lucky. Hope that helps.
Whether or not to take the breathalyzer
Unfortunately, there is no one-size-fits-all answer to this question. If you take and fail the breath test (a blood alcohol concentration of .08 or higher), your license will be suspended for 30 days. At the police station, you are informed that refusing to take the breath test will result in an automatic license suspension of 6 months if this is your first offense (or 3 years if under 21 years old), 3 years if this is your second offense, 5 years if this is your third offense, and a lifetime loss of license if this is your fourth offense. The longer license suspension may encourage you to submit to the breathalyzer, which is the intent behind the law. However, what the police do not tell you, is that without a failed breath test to use against you in court, the prosecution might have a very tough time proving that you were actually impaired by alcohol.
In Massachusetts, there are two ways that the prosecution can prove that you were "under the influence of alcohol" while operating a motor vehicle on a public way. This first is the "per se" violation, where the prosecution just needs to prove that your blood alcohol concentration was .08 or higher. A valid breath test makes for a very strong case against you, assuming that it was administered properly and there are no other legitimate factors that would have altered the results. The second way to prove that you were "under the influence" is by testimony of the arresting officer about your demeanor, appearance, and performance on the field sobriety tests, the testimony of and any other percipient witnesses, circumstantial evidence, and physical evidence tending to show that your ability to operate a motor vehicle safely was diminished due to alcohol consumption. However, there are MANY ways that a skilled OUI defense attorney can attack this theory of impairment. Without a breath test, and without any other aggravating factors (car accident, belligerent conduct, incriminating statements, etc.), you probably have a legitimate case worth fighting. If you are found NOT GUILTY, there is also a presumption that your license be reinstated if it is still suspended for refusing the breath test, unless the prosecution can demonstrate that reinstatement would pose a danger to the community.
In my opinion, it is usually not a good idea to take the breath test in Massachusetts. Even just a few drinks can lead to a reading of .08 or higher. It is in your best interest NOT to help the prosecution build their case against you. In fact, if you refuse to take the breath test or field sobriety tests, or if you refuse to do both, the fact that you were asked and subsequently chose to refuse these tests CANNOT BE USED AGAINST YOU IN COURT! As far as the jury is concerned, you were never even offered the chance to take these tests. By helping to set yourself up for an acquittal on an OUI charge, you are helping to avoid the significant consequences of a conviction or a Continuance Without a Finding. On the other hand, if the only thing that matters to you is your driver's license, and you can live with all of the other consequences of a plea deal or conviction (fines, fees, probation supervision, alcohol education classes, a criminal record, future collateral consequences, etc), then taking the breath test is one way to avoid a minimum 6 month license suspension.
If you have been charge with Operating Under the Influence of Alcohol in Massachusetts, or any other criminal offense, contact my office for your free initial phone consultation.
Benjamin P. Urbelis
Taking the Test or No
If you have no prior dui cases and you are over age 21 the dynamics are as follows:
LOSS OF LICENSE ASSOCIATED WITH THE BREATH TEST (Taking or Refusing): If you refuse the test you lose your license for 180 days for the refusal. If you take the test and fail (.08 or over) you lose your license for the failure for 30 days or until your case is disposed of in court, whichever occurs first. If you take the test and blow under .08 there is no loss of license associated with the test.
BREATH TEST AND THE AFFECT ON THE CRIMINAL CASE: If you refuse the test, then the state's case against you may be more difficult for the state to prove and you may have a better chance of being found not guilty. If you take the test and fail (.08 or above) the state's case against you is easily proven. If you take the test and blow under .08 you have a much better chance of being found not guilty. LOSS OF
LICENSE IF CONVICTED (FIRST OFFENSE): The typical first offense dui conviction carries a loss of license (for the conviction) of 45-90 days. It is up to the judge to set the length of time and in the majority of first offense cases (assuming no death, no serious injury, and no serious accident)the judge takes the license for 45 days for the conviction. So if you are convicted of a first offense you will have the following loss of licesne factoring in whether you took a breath test or not: Conviction (45 Days) + Breath Test Refused (180 days) = 225 days Conviction (45 days) + Breath test Failed (30 days or less if case disposed of prior to the 30 days running) = 45-75 Days (depending on how quickly case is resolved following the arrest.) Conviction (45 days) + Breath test Under .08 (0 days)= 45 Days. And in the typical first offense case if you can persuade the RMV that you have a hardship then you would be eligible for an immediate hardship license during the period of loss of license followng the conviction.
LOSS OF LICENSE IF FOUND NOT GUILTY: If you win your case there is no loss of license associated with the win itself. If you win the case but refused the breath test the 180 day loss of license for not taking the test is still in effect; however, the Judge has the discretion to cancel the balance left on the 180 days and order your license returned. That is not guaranteed and many judges will not cancel the balance left on the 180 day suspension. If you win the case but did not take the test and the Judge refuses to cancel the balance left on the 180 days there is no provision for a hardship license during the remainder of the 180 day suspension. If you win the case and you took the test you get your license back immediately. So as you can see there are many variables. Statiscally the majority of persons arrested for a first offense dui plead guilty and they are better off if they have taken the breath test as the loss of license will be only 45 days. Given all the above I would advise to take the breath test.
Attorney Robert D. Lewin
Malden/Andover, MA attorney