A breath test, or breathalyzer machine is designed to measure breath alcohol content (BrAC). When you blow very hard into one of these machines, it measures breath alcohol content from the alveolar air, deep in your lungs.
Is Breath Alcohol Content the same as Blood Alcohol Content (BAC)?
No. The only way to get a true BAC is to take your blood and calculate the percentage of alcohol directly. The legal standard for impairment is based on Blood Alcohol Content (BAC), and is .08 ml BAC.
Breath machines simply measure breath alcohol. In an average person, the ration of breath alcohol to blood alcohol is 2100 to 1. But these numbers have an assumption of legal equivalence
Even though, not everyone is average. Your body chemistry may have a higher ration of breath alcohol to actual blood alcohol, so it’s entirely possible for you to blow a number that indicates impairment where a blood test would show you under the legal limit.
More info on how breath test machines work.
What Breath Alcohol Device is used in Massachusetts?
Police departments in Massachusetts use an Alcotest machine, manufactured by Draeger.
Are there other known flaws in these devices?
Yes, there are many questionable issues with these devices.
The machine may report a false positive (failure) due to:
- acid reflux, stomach disorders (GERD)
- mouth alcohol
- consumption of bread
- abnormal breathing patterns or other physiological issues
- rising blood alcohol level at the time of the test
- radio frequency interference
- poor machine maintenance or calibration
- Devices may be biased against women.
Update: The Massachusetts Supreme Judicial Court ruled on 4/19/07 that breath test evidence may be used in court, without expert testimony required for the prosecution to establish the machines validity.
The defendants argued that the timeline from the time the defendant last consumed alcohol, to being pulled over, to being tested back at the police station needed to be spelled out and explained. In a rising BAC defense, a person could have several quick drinks, drive a short distance home, and not be impaired or register over .08 BAC until the alcohol gets into his or her system. When the test is given an hour later, they may register as over the limit where they were not at the time of the stop.
The SJC rejected that argument, and will allow judges to accept breath test evidence when the test is given within three hours of the stop. Typically, breath tests are given back at the police station within an hour or so of being placed under arrest.
The case was Commonwealth v. Colturi. [full ruling]
Can I win a Case if I Failed a Breath Test?
Absolutely. It is increasingly common for judges to throw out breath test results if the attorney makes the right argument in front of a sympathetic judge.
Should I Refuse to Take the Breath Test?
Penalties for Breath Test Refusal in Massachusetts
If you refuse the breath test at the police station after being arrested, your license will be suspended for 180 days if it is a 1st offense OUI charge. Refusal suspension will be for three years for a 2nd offense, or a first offense if you are under 21 (5 years for a second under 21 OUI charge).
The refusal is considered an administrative penalty from the Registry due to implied consent, and not a criminal penalty. But any suspension period from a refusal and a later convicted will be consecutive, thanks to Melanie’s Law.
Call MA attorney Russell Matson if you’ve been arrested and have questions about the MA legal limit for driving and consuming alcohol. You can call 24 hours a day at (781) 380-7730, and attorney Matson will be happy to consult on your case, with no further obligation.
Call Russell Matson’s cell phone to talk to an at (781) 380-7730.