In Massachusetts, the legal limit is .08% BAC (Blood Alcohol Content). This number is determined by a breath test or breathalyzer machine used at the police station after being arrested, or a blood test.
If you are taken to the police station and blow a .08% or higher on two samples, you are said to have failed the breath test.
Under Massachusetts drunk driving laws, we have what is known as a “per se” law, meaning if they can prove by means of a breath test or blood test that your BAC is .08%, or above the legal limit, it is legally presumed that your ability to operate a motor vehicle is impaired. This is also known as the implied consent law.
If you failed the breathalyzer, that doesn’t mean we can’t win the case. In many situations it can still make sense to fight the evidence, and take the case to trial. And there are many things we can do to challenge the breath test evidence. But it is a trickier case, so some people chose to work out a deal.
I passed the breath test. Does that mean I win the case?
Not automatically, no. Even if you take a breathalyzer / breath test and pass, you can still be arrested for OUI. If you blow a .06 or .07 BAC, the police officer has the option to keep your arrest active. The officers will have to use other evidence to establish that your driving was impaired. Fortunately, it is much harder for them to prove this when their own evidence doesn’t support the arrest. These cases can almost always be won, and it almost always make sense to fight the OUI charge.
If you passed a breath test with under a .08 (.07 or .06 BAC), call me immediately and I’ll tell you what I will do to most likely get you case dismissed.
They Gave Me a Breath Test by the Side of the Road. Does that Count as a Failure?
Nope, it’s totally meaningless, and not admissible in court. Portable Breath Tests (PBT) are not considered scientifically accurate. However, some police departments still use them. Certainly, if you fail a PBT, it means they will arrest you. But it won’t hurt you in court. It won’t even be mentioned. Only the breathalyzer back at the police station (a Draeger Alcotest, to be accurate) is considered accurate enough to be used against you in court.
Can We Win a Case if I Failed a Breath Test?
Yes. There are a number of situations where we can argue that the judge should throw out breath test results. It certainly depends on the circumstances, and legality of your breath test results. But we would have to makes the right argument in front of a sympathetic judge.
We can also bring in an expert witness that can explain why the results of your BAC could be faulty. The reasons might be medical, technical, or procedural. I can have my breath test machine expert study your specific case, and we can subpoena the maintenance logs from the breathalyzer machine you were tested on to look for errors or flaws.
I still recommend to my clients that they refuse to take the blood alcohol test, as well as refuse to perform any roadside field sobriety tests. It is your right to refuse these tests, although the police may not tell you that up front. The fact that you refused these tests cannot be brought up in court and used against you, so you’ll be in a much better position to defend yourself at trial. By refusing the tests, you will almost certainly be arrested and your license immediately suspended.
Underage DUI Laws in MA
If you are under 21 years of age, the Massachusetts Registry of Motor Vehicles will suspend your license for a BAC of .02% as a Breath Test Failure. This is known as the “zero tolerance policy” law.
However, for criminal purposes, the law still states that it is a .08 BAC level to be found guilty of a criminal charge of Operating Under the Influence.
Penalties for Breath Test Refusal in Massachusetts
Refusal of a breath test results in a mandatory 180 day license suspension in a first (1st) offense OUI case. If it is a second (2nd) offense refusal, you license will be suspended for 3 years. Also see my breath test info page.
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 OUI Attorney Russell Matson talk to an attorney anytime at (781) 380-7730. Calls returned nights and weekends.