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Understanding OUI/DUI Arrests and Breath Tests in Massachusetts

When you have been pulled over and are suspected of drunk driving, you could be asked to provide a breath sample. Misconceptions exist about what your rights are and what these types of tests are. Misunderstandings can lead to more problems, especially if you are facing OUI/DUI charges in Massachusetts

At Gilman Law, P.C., our OUI/DUI defense lawyers help clients understand all aspects of their drunk driving case. We believe informed clients make better decisions about their OUI/DUI case. If you have questions or want to speak to a OUI/ DUI defense lawyer in Massachusetts, call us at 978-612-6447 to schedule a free.

What Are Breath Tests?

Police officers use breath tests in roadside testing and following arrests to help determine whether an alleged drunk driver was under the influence of alcohol while operating a vehicle. These tests can be used for operators of cars and trucks as well as operators of motorcycles, boats, and other vehicles.

There are two different types of breath tests: the preliminary breath test (PBT) (also known as preliminary alcohol screenings) and the breathalyzer. Both "types" are often simply called "breath tests," and that's where the confusion comes in. By referring to both as breath tests, people assume they are the same thing, but they are not. Each is administered for different reasons and purposes.

Preliminary Breath Tests

A preliminary breath test or alcohol screening is a breath alcohol test conducted using a portable breath machine in the field, meaning on the side of the road during a traffic stop or OUI/DUI investigation. The PBT measures a person's breath alcohol content (BrAC). Portable breath test results are inadmissible in court because they are unreliable. However, the police can use these results to establish probable cause to place you under arrest.  

PBTs are administered when a police officer has reasonable grounds to believe you are unlawfully intoxicated. Maybe your speech was slurred or your eyes were bloodshot, and so the officer asks to take a breath sample. If you fail the PBT, that could be enough probable cause to arrest you for a drunk driving offense. A PBT result can also be used in conjunction with a failed field sobriety test as sufficient probable cause to arrest you.


After an arrest for a drunk driving offense, you will be requested to take another test. Typically, this is a chemical test using a breathalyzer. The breathalyzer is not a portable machine and produces results that are more accurate and can generally be admitted into court as evidence against you. Approved breathalyzer machines are subject to calibration requirements established by Massachusetts law and regulations.

Before you provide a breath sample via a breathalyzer, the officer should have read the Miranda warning to you. Miranda warnings advise you of your rights. In addition the officer should have read the Statutory Rights and Conditions before having you submit to the test. If these warnings were not provided to you prior to a breathalyzer test, your rights may have been violated.

Do I Have a Right to Refuse a Breath Test in Massachusetts?

If you are arrested for OUI/DUI in Massachusetts, you can refuse a breath test However, keep in mind, though, that you should be ready for consequences stemming from the refusal. Immediate consequences include a license suspension from 180-days to life, just for refusing the breathalyzer.

Massachusetts drivers' impliedly consent to taking a breathalyzer simply by driving on the state's roads. These laws basically say that you implicitly agree to obey the rules of the road when you get a driver's license. As such, you also implicitly agree to any chemical tests (breath or blood) in exchange for the privilege of operating a vehicle in the state. If you refuse, the state's agency for motor vehicles can impose an automatic license suspension and fines against you. You do not have to be charged and convicted of a drunk driving offense to have your license suspended -- you just need to refuse a breath test.

If you were arrested in Massachusetts, you should speak to a drunk driving defense lawyer who handles both administrative and criminal OUI/DUI cases. Administratively, you can appeal an automatic license suspension but must do so very quickly. Criminally, you can fight OUI/DUI-related charges and be successful.

Common Problems with the Breath Tests in Massachusetts

Breath tests using portable machines are known to be unreliable, and that's why they are not admissible in court. Breath tests using breathalyzers at the police station, however, are admissible. They, too, can also be unreliable and become inadmissible under certain situations or circumstances.

Problems with breathalyzers can be categorized as those resulting from the testing device or machine, the individual operating the device, or the test sample.

Problems with the Breathalyzer Device

  • Improper calibration
  • Incorrect chemical solutions
  • Inappropriate modification
  • Faulty programming
  • Broken or otherwise not maintained properly

Issues with the Administration of the Test

  • Failure to read Miranda & Statutory Rights Warnings
  • Improper instructions or methodology
  • Failure to follow testing protocols
  • Testing performed by an untrained person

Causes of Improper Breathalyzer Test Readings

  • Pre-existing conditions or other medical conditions suffered by the test taker
  • Medications, foods, or drinks
  • Residual alcohol from the test taker's mouth
  • Certain diets, like Keto

Breath tests can be challenged. Lawyers at Gilman Law rountinely file motions to suppress or exclude the results. When, successful, this could result in dismissal of the charges or an acquittal.

Five Ways We Challenge OUI/DUI Breath Tests in Massachusetts

A breath test is often a substantial part of the prosecution's case involving OUI/DUI offenses. For that reason, it is essential to ensure that a breath test was performed correctly and the results are accurate. The OUI/DUI attorneys at Gilman Law, P.C., are well trained and have experience in these cases can identify a problem with a breath test and take proper action to suppress it as evidence.

At Gilman Law, P.C., we can take any of the following actions, depending on the specific facts and circumstances of your case:

  1. Attack the reliability of the breath test. Many reasons exist why we may not be able to rely on the results of a breath test, like a faulty machine, improper administration, or health issues with the test taker.
  2. Prove the breath device was not properly calibrated. Each state has its respective laws on calibration, but it usually involves a certified forensic analyst and verification of the machine's accuracy.
  3. Prove device was not properly maintained. Typically, the date and time of repairs and maintenance, as well as the nature and extent of and who performed the maintenance and repairs must be logged.
  4. Prove there was a lack of training or an operator's error. Police must be trained in order to conduct breath tests. An untrained or uncertified police officer may not properly administer the test.
  5. Prove records were not properly maintained. Records should be kept to show proper calibration and maintenance, and failure to keep those records updated can be used to prove the device was not properly calibrated or maintained as the law requires.

During the discovery phase of your criminal case, we will obtain the information and evidence we need to support arguments against the breath test's admissibility.

Contact a OUI/DUI Defense Lawyer in Massachusetts Today

You can have your day in court to challenge OUI/DUI charges regardless if you took and failed a breath test or refused one. With the right OUI/DUI defense lawyer in Massachusetts, you can be successful. Contact Gilman Law, P.C. today by calling us at 978-612-6447 or filling out an online form to schedule a free. We will review your case and discuss your best legal options.

Contact Us Today

Gilman Law P.C. is committed to answering your questions about OUI-related offenses and license suspensions issues in Massachusetts.

We offer a Free Consultation and well gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.

Lunenburg Office
21 Main Street
Lunenburg, MA 01462
Worcester Office - By Appointment Only
652 Park Avenue
Worcester, MA 01603