If you get pulled over in Massachusetts on the suspicion of operating under the influence (OUI), one of the first things you’ll encounter is a breathalyzer test. When representing OUI clients, criminal defense attorneys often get asked: “What is a breathalyzer, and should I take it?” Here are some key details about the breathalyzer that you need to know.
A breathalyzer is a device that estimates the blood alcohol concentration (BAC) of an individual by measuring the alcohol in one’s breath. When you blow into the device, it uses chemical/infrared sensors to detect alcohol levels. A BAC of 0.08% or higher is considered legally intoxicated for drivers in the state of Massachusetts.
The results of breathalyzer tests are often the strongest evidence in OUI prosecutions. They can be compelling in court but are not always foolproof–technical errors, improper procedures, and physical conditions can impact the reliability of the results.
Now, a common question many clients ask is: “Should I always take the breathalyzer?” This is where things may get complicated. Under Massachusetts’ implied consent law, refusal to take a breathalyzer during the booking process, at the police station (not roadside), will result in an immediate license suspension. For individuals with no prior OUI history, it is 180 days. However, for drivers with prior OUIs, the suspensions range from 3 years to lifetime. Despite this, refusal cannot be submitted as evidence against drivers during a trial.
Failing the breathalyzer, by blowing a 0.08% or higher, will result in a 30-day license suspension, and the result can be used in court. The short-term suspension may seem more appealing than a refusal, but the failed test could be stronger evidence in your prosecution.
There is an important distinction to be made between portable breathalyzers and those at the station. On the side of the road, police officers may ask you to use a preliminary breath test (PBT), which is a small handheld device. However, the PBT is NOT admissible in court as evidence of your BAC and you are NOT required to take the PBT, for refusing it does NOT trigger a license suspension. However, the results on a PBT can be used to establish probable cause for your arrest.
At the police station, you will be offered the official breathalyzer test on the Draeger 9510 device. This test IS admissible in court, provided it is administered correctly.
However, the result of a breathalyzer is not automatic proof of guilt. In the state of Massachusetts, results can be thrown out if:
- The officer did not observe you for a full 15 minutes before the test (to ensure no burping, vomiting, eating, or drinking occurred),
- You coughed, burped, or regurgitated during the observation phase (which can introduce alcohol from the stomach into the mouth and skew the test results)
- The machine was not properly maintained or calibrated,
- The officer lacked proper certification, training, or deviated from protocol.
As a matter of fact, Massachusetts courts have thrown out entire batches of breathalyzer results due to concerns over machine accuracy.
All in all, if you have been charged with an OUI, do not assume that the breathalyzer seals your fate. Criminal defense attorneys, like us here at Gilman, have extensive experience identifying procedural flaws and advocating for just proceedings for our clients. Contact us today!
