Drunk Driving Breathalyzer Tests

Breathalyzer tests in Massachusetts have a wide range of implications. If you have been stopped and are under suspicion of drunk driving you will be offered an opportunity to take a breathalyzer test. The results of the test, with limited exception, will be admissible as evidence at trial. If the result is a .08 or higher there is a presumption in Massachusetts of impairment. There are several things you should know about these tests:

• If you refuse to take the breathalyzer test and this is a first offense and you are 21 years old or older, your license will be suspended for 180 days. If the case is dismissed or you are found not guilty you can apply to the registry for reinstatement prior to the expiration of the 180 days;
• If you fail the breathalyzer test (.08 or higher) your license will be suspended for thirty (30) days;
• If you are under the age of 21 and your breathalyzer test result is a .02 or higher your license will be suspended for thirty (30) days;
• In certain circumstances breathalyzer results are inadmissible at trial in the absence of expert testimony showing the relationship between the test results and intoxication or impairment, Commonwealth v. Colturi, 448 Mass. 809 (2007);
• If you refuse to take a breathalyzer test the district attorney cannot comment on that refusal nor can the fact that you refused to take the test be admissible in any way at trial;
• Under 501 CMR Section 2.55 once a person arrested for OUI influence submits to a breathalyzer test he or she is supposed to be observed by the breath test operator for at least fifteen minutes before the test is administered to make sure that the subject does not eat, drink or is not burping or hiccoughing.

Just because a breathalyzer test was given does not mean that the results are necessarily admissible into evidence. The prosecutor must first show that the machine was working correctly and that the results were accurate. Periodic testing in no more than six months intervals must be demonstrated to overcome a challenge to the admissibility of breathalyzer results. To ensure accuracy a solution containing .15 percent alcohol must be run through the machine and those results must be registered on the instrument. If this is not done, or the results do not comply with the requirements of Massachusetts law, the results might be stricken.

My clients ask me this question all of the time. The answer is yes. Vomit in your mouth can cause a false positive. Blood in your mouth can have the same result. Radio waves from cellphones or police radios placed near the machine can give a false positive result. Cigarette smoke can elevate the result as can mouthwash or toothpaste. Remnant food particles between your teeth might impact the test result unfavorable.

The Law Offices of Stephen Neyman has successfully defended drunk driving cases throughout Massachusetts for over twenty years. Our phones are answered 24 hours per day, 7 days per week. If you have been charged with OUI or DUI in Massachusetts call our office now at 617-263-6800 or contact us online.

Si usted habla espanol contacta a nuestro asistente de abogado Maria Rivera en 617-877-6270.