Whether to Blow in Breathalyzer

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Whether to Blow in Breathalyzer


You have a constitutional right in Massachusetts to refuse to blow into a breathalyzer. Your refusal cannot be used against you as evidence of intoxication at a criminal trial for OUI. There are, however, serious civil penalties attached to a breath test refusal – including a mandatory 180-day loss of license imposed by the RMV for first offenders.

The Supreme Court of Massachusetts has repeatedly held that using evidence of a person’s refusal to submit to a breath test in a criminal case violates the state constitution’s right against self-incrimination. This right is grounded in Article 12 of the Massachusetts Declaration of Rights (which affords broader protection than the federal 5th Amendment). The court recognizes that someone who is intoxicated is put in a position to: (1) take the test and fail, or (2) refuse the test. Both instances are suggestive of guilt. The person is, therefore, put in a “catch-22” where both options are incriminating. The court considers this functionally equivalent to forcing a person to bear witness against oneself. As a result, evidence that a defendant refused the BT is inadmissible at an OUI Alcohol trial in Massachusetts.It is important to note that this constitutional protection only extends to the refusal itself. For instance, where a person responds by saying: “No, I won’t take the breath test. I’ve had too much to drink,” the court will only exclude the portion necessary to decline the offer (i.e. “No, I won’t take the breath test”). The additional statement “I’ve had too much to drink” is superfluous; therefore, it is outside the protections of Article 12 and will likely be used as an incriminating admission at trial.

B. Agreeing to Take the Breath Test (BT):

It is a crime to operate a motor vehicle on a public way in Massachusetts with a blood alcohol content of .08 % or higher. If the police obtain a BT result over the legal limit, this can be powerful evidence of guilt at trial. If the Commonwealth establishes that the BT results are valid, the prosecutor will submit these findings to the jury.There are, however, situations where the defendant can move to suppress the results of a breath test prior to trial. This occurs when the circumstances suggest improper maintenance of the machine, inaccuracy, or disregard for the procedural requirements that safeguard the validity of the test (such as the requirement that police observe defendants prior to administering the test to prevent behaviors like burping or gum chewing from skewing the test results).

The law of OUI in Massachusetts can be complicated, and the penalties can be severe and long lasting. Attorney Patrick Winn has handled hundreds of OUI cases in Massachusetts and taken dozens of these cases to trial. Winn Law, P.C. offers experience and expert legal counsel in defending against OUI charges. Please contact us through this website, call us at (857) 415-2415, or email at patrickmwinn@gmail.com to schedule a free consultation.


(1) Opinion of the Justices, 412 Mass. 1201, 1210-1211 (1992)


(2) Commonwealth v. Blais, 428 Mass. 294 (1998) (police are not required to advise you of your right to refuse to take sobriety tests)


(3) Commonwealth v. Curley, 78 Mass. App. Ct. 183 (2010)


(4) G. L. c. 90, § 24(1)(a)(1) https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter90/Section24

(5) Commonwealth v. Healy, 452 Mass. 510, 513 (2008) ("It is well settled in Massachusetts that a defendant's refusal to submit to a blood alcohol or field sobriety test is inadmissible at trial.")


Disclaimer: This article is intended to provide general information and should not be mistaken for legal advice or an attorney-client relationship. The circumstances of a given case are always unique and should always be given individual consideration by a knowledgeable attorney.

Winn Law, PC

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