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Should I stay or should I blow? Breath Test Refusals in Massachusetts.

Posted by Harrison Barrow | Nov 04, 2014

One of the most commonly asked questions I hear is “should I take the breathalyzer?” This question comes up everywhere - from parties to lock-up. Some people tell me, “my lawyer told me to never take the test.” Well, that's one way to do it, but that advice has been around since before “Melanie's Law.” “Melanie's Law” increased the penalties for refusing to take a breathalyzer. Just refusing to provide a breath sample can expose you at a minimum to 180 days of license loss, and a hefty reinstatement fee (typically $500 at this writing).

If you're here looking for a quick answer, here's a rule of thumb:

If you're wondering if you should take the breath test or not, you probably shouldn't.

Fact is, if you're debating whether to take the test or not, chances are you've had a couple drinks. As you probably know, the legal limit in Massachusetts is 0.08% Blood Alcohol Content. If your blood is above this level, the law considers you per se intoxicated. If you provide a breath sample over this amount, you automatically lose your license for 30 days after your arrest. Even if you are below 0.08%, the Commonwealth can still prosecute you. Between 0.05% and 0.079%, there is no inference to be made about your intoxication, and below 0.05%, you're presumed to be not intoxicated.


The only refusal that really matters when it comes to breath tests is a refusal on the official breathalyzer back at the station. In Massachusetts, just about every town has a machine called an Alcotest 9510, which claims to accurately measure the amount of alcohol in your bloodstream (it doesn't). A few towns may still have the old Alcotest 7000 series machines, but which of these machines isn't important to you right now. What matters is that these are the machines that matter. Explaining why these matter requires getting into a little bit of Massachusetts Evidence.


Portable breath tests, the little hand-held machines officers use at the side of the road, are not admissible at trial in Massachusetts. If I see a portable breath test mentioned in a police report, I usually put a slash through it, because they probably don't matter to me. If there's a big discrepancy between the portable reading and the calibrated machines, then maybe we have an issue, but otherwise, I really don't care about a portable.

What does that mean for you? Why not take the portable if it's offered? Well, you'd might as well. Remember, this only applies to the portable breath test. These portable tests are only supposed to help an officer screen you to see if you should be arrested or not. The results of these tests cannot come in at trial.

For a breath test to come in at trial, it needs to comply with Title 501 of the Code of Massachusetts Regulations. The regulation is very clear: “501 CMR 2.00 does not apply to portable breath test devices used to conduct pre-arrest screening.” The larger machines are supposed to be subject to a host of tests and certifications. Portable machines are not monitored so stringently. Therefore, tests taken on a portable machine can't be used against you. They can really only help you to give you an idea if you're intoxicated.


If you refuse to provide a breath sample, you will lose your license for at least 180 days. If you've previously been convicted of operating under the influence, depending on how many times, you could lose your license for life.

Suspensions for refusal are:

180 days - if you've never been convicted before. There remains some confusion by the Registry if a “continued without finding” (or a CWOF) should be considered a conviction for these purposes.

3 years - if you've ever previously been convicted for OUI, or if you are under 21 years old at the time of refusal.

5 years - if you've received 2 previous convictions for OUI.

Lifetime - if you've previously been convicted 3 times for OUI.

10 years - if you've previously been convicted of OUI with serious bodily injury.

Please note, though, that individual circumstances differ. Your suspension could possibly be longer or shorter, depending on the specific facts of your situation. All of this is nothing to say about the possible loss of license if you are convicted of OUI on top of this.

About the Author

Harrison Barrow

Hi, I'm Harrison Barrow. I'm an attorney on Cape Cod, and I accept cases in all counties in Massachusetts. I am a third generation attorney, and a second generation Massachusetts criminal defense lawyer. I grew up on Cape Cod, then headed north to Cambridge, Massachusetts. After receiving my und...


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