Understanding OUI Arrests and Breath Test Refusal in Massachusetts


Scroll Down to See Clients We've Helped Get License Back Despite Refusal Suspension

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 charges in Massachusetts

Attorney Dunn helps clients understand all aspects of their Massachusetts drunk driving case. We believe informed clients make better decisions about how to proceed. If you have questions or want to speak to an OUI lawyer in Massachusetts, call us now at 617-504-4881 to get your free consultation.

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 as defined by their respective state.

There are two different types of breath tests: the portable, 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 investigation. The PBT presumes to measure a person's breath alcohol content (BrAC). A refusal to submit to portable breath test is almost always inadmissible in court.


After an arrest for a drunk driving offense, you will be asked to take another test. Typically, this is a chemical test using a breathalyzer. The breathalyzer at the police station is not a portable machine and produces results that are more accurate and can be admitted into court as evidence against you. Refusal to submit to a breathalyzer, however, is generally not admissible at trial.

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

Yes, you can refuse a breath test in either situation in Massachusetts. Breath tests using portable machines in the field are typically voluntary while tests used at the police station while in police custody are not "voluntary." You can, however, still refuse either one.

Keep in mind, though, that you should be ready for consequences stemming from the refusal. Immediate consequences include administrative penalties, such as immediate license suspension by the RMV from 180-days up to life.

All states have their own variation of implied consent laws. 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, blood, or urine tests) in exchange for the privilege of operating a vehicle in the state. If you refuse, the Registry can impose an automatic license suspension 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 cases. Administratively, you can appeal an automatic license suspension if, for example, the police failed to warn you of the consequences. Criminally, you can fight OUI-related charges and be successful.

Contact Massachusetts OUI Defense Attorney James Dunn Now

You can have your day in court to challenge OUI charges regardless if you took and failed a breath test or refused one. With the right OUI defense lawyer in Massachusetts, you can be successful. Contact OUI defense attorney James Dunn today by calling us at 617-504-4881 or filling out an online form to get your free consultation.

Clients We've Helped Get License Back Despite Refusal Suspension

S.C., 12.16.2022 Lowell
2nd Offense OUI & Child Endangerment While OUI
Not Guilty - License Restored

Client was facing mandatory minimum jail time. However, she had refused the breath test and did fairly well on the roadside tests. We immediately filed a motion to preserve the booking video and used that at trial. The video showed her walking, standing, acting and speaking completely normally - contradicting the police report of unsteadiness on feet and slurred speech. The judge agreed that she appeared sober in the video and found her Not Guilty. We then immediately filed a motion to restore her license. The judge allowed our motion and we saved the client at least an additional 5 years without a license.

Per Client: "You saved me!"

Judge's Order 20221216
Click Here to See Judge's Order Restoring License

A.T., 11.30.2022 Uxbridge
Not Guilty After Trial & License Restored Immediately Same Day

James was on point from day one. He was always responsive and helped my fiancé make all the right decisions. He advised her to go to trial which we scheduled for the soonest available date. Then he won a Not Guilty and immediately filed a motion and convinced the judge to order the RMV to restore her license. He planned ahead and scheduled a hearing with the RMV for the same day as trial and the RMV restored her license that afternoon!

I couldn't be happier with the result. Hire him, you won't regret it.

Click Here to See Paul's Google Review

Docket 20221130
Click Here to See A.T.'s Court Docket
Judge's Order 20221130
Click Here to See Judge's Order Restoring License

T.M., Barnstable
Not Guilty 2nd Offense After Jury Trial
License Restored
Client admitted to drinking then failed roadside tests after cops found him sleeping in his car at the side of the road. Cops also noted that he had wet his pants. Then his license was suspended for 3-years after refusing the breath test. Attorney Dunn won a Not Guilty at jury trial then immediately filed a motion and convinced the judge to order the RMV to restore client's license.
Per Client: "Saved my license and career! Wish I could give you 10 stars!"

Docket 20221108
Click Here to See TM's Court Docket
Judge's Order 20221108
Click Here to See Judge's Order Restoring TM's License

Mike, Dudley / East Brookfield / Worcester
Not Guilty 2nd Offense, License Restored
Attorney Dunn saved my career! First, he convinced the judge to overturn my 3-year breath test refusal suspension and restore my license. Then, after representing me for 50 months because of COVID delays (and without ever asking for more money) he won a not guilty at trial and prevented any new license suspensions. I drive for a living and can't thank him enough for saving my license and my job.
Saved My License & My Job!

See Mike's Google Review Here

Brandon, Worcester
3-Car Crash
Not Guilty - Second Offense
Client crashed into two parked cars on way home from a gentleman's club. When police arrived, they observed an odor of alcohol, slurred speech, bloodshot and glassy eyes and said he was swaying in a circle. Attorney Dunn was able to get the officer to agree that he did not know where the parked cars had been before the accident and the officer even testified it was possible those cars had been parked partially in the travel lane on a dark street just after a turn. He then argued that after being hit in the face with an airbag from the steering wheel, anyone would be disoriented and have red eyes. The judge agreed and found our client not guilty after trial. Then attorney Dunn filed a motion and convinced the judge to restore Brandon's license.
Won a NOT GUILTY. License restored! Prevented additional two-year license loss!

Docket 20221102
Click Here to See Brandon's Court Docket

Lisa, Leominster
Rolled Thru Road Block
Not Guilty at Trial
At a sobriety check point, Lisa rolled thru the stop sign, ignored initial contact and admitted to drinking. Officers noted an "overwhelming odor" of alcohol on her breath, red and glassy eyes and that her speech became increasingly slurred and thick tongued. On the walk and turn test, she started before told to do so and raised both arms from her sides. At trial, attorney Dunn won a not guilty and then convinced the judge to order her right to drive in MA restored immediately.
"Attorney Dunn was very thorough."
"Best Lawyer Ever!"

Felix, Lawrence
Road Block
Preserving Body Camera Video Won a Not Guilty
Felix was stopped at a sobriety checkpoint. Because English is not his first language, he refused to do the ABC test. Trooper then decided to arrest him. We immediately submitted a motion to preserve the body cam video. At trial, once the video was shown, cop was actually forced to admit he did "fantastically well" on all the other field sobriety tests! Judge found him not guilty and ordered the RMV to restore his license immediately. 

Sarah, Concord
Blood Test 2X Legal Limit
Failed 3 Field Tests
Jury: Not Guilty 2nd Offense
Cop saw Sarah cross marked lanes 5 times. Her speech was slurred and she failed all the field tests. After refusing the station breath test, we overturned her 3-year RMV suspension so she drove legally awaiting jury trial. At trial, although 3 cops testified against her, we kept out both a damning video and medical records showing her blood alcohol was twice the legal limit. We then argued Sarah behaved completely normally at roadside before cops grabbed her and arrested her and also stressed she did the balancing tests in flip flops, after midnight, exhausted and on her way to her second job.
Jury Verdict: Not Guilty
Per Sarah: "James fought & fought & fought for me!"

Chris, New Bedford
3rd Offense Reduced to 2nd
Then All Charges Dismissed
'Cop wrote that I had an extremely strong odor of alcohol, red, glossy and bloodshot eyes and ordered me out of my car. After the arrest, they found two alcohol nips in the front seat area. During the year and a half they represented me, they prevented the charge of felony third offense being filed. When the cop failed to show for the second time on a motions date, attorney Dunn vociferously argued that the case was taking too long and the cop didn't bother to notify the court he wasn't going to be there and that the only appropriate remedy was dismissal of all the charges. The judge agreed. But he didn't stop there! Attorney Dunn had fully prepared beforehand for this eventuality. He immediately presented a previously drafted motion to restore my license and the judge signed it the same day, overturning my five year refusal suspension.'
5-Year Refusal Suspension Reversed

David, Quincy
Not Guilty 2nd Offense
Judge Orders License Restored
James Dunn is master at what he does. He kept me informed every step of the way during the two years it took to go to trial and helped me make all the right decisions from day one. We declined the DA's offers to settle the case and instead fought it. At trial, James was obviously well prepared with motions and arguments and convinced the jury to find me not guilty. Then he immediately convinced the judge to restore my license despite my 3-year breath test refusal suspension. Attorney Dunn helped me get my life back. I couldn't be happier at what did for me.
"Attorney Dunn Helped Me Get My Life Back"

Jason, Stoughton
6-Month Refusal Suspension Overturned
James was quick with responses to e-mails and calls at any time or day. They were very clear with every aspect of the process and the steps needed to be taken. Incredibly, they were able to overturn my six-month refusal suspension so I got my license back much sooner. Also, they reduced some of the fines I was required to pay. Attorney Dunn always took time to actually talk with me and never rushed through any calls.
"I got my license back six months sooner"

John, Lowell
2nd Offense - Not Guilty
License Restored Immediately
"James put my mind at ease from the very beginning. Was always available to answer questions and give me guidance, no matter how late I got home from work. Gave me solid advice and helped me make all the right decisions. Should I plead guilty or go to trial? Should I choose judge or a jury trial? Was right about everything!"
"Right about everything!"

Seth, Malden & Board of Appeals
Not Guilty - 2nd Offense
Client was reported as an "erratic operator." Cop approached him, was overwhelmed by an odor of alcohol, his eyes were glassy and bloodshot and his speech slurred. At trial, attorney Dunn argued he was able to produce his license and registration with no difficulty and performed well on the one leg stand test at 3 AM. Judge quickly found him not guilty and ordered the 3-year refusal suspension removed. When RMV refused to return license, attorney Dunn convinced the Board of Appeals to order the RMV to do so.
"James paid attention to every detail. His thoroughness and professionalism was reassuring."

Colin, Wareham
2nd Offense - Not Guilty
3-Year Refusal Suspension Reversed by Judge
"Attorney Dunn: Thanks so much for your patience, knowledge, professionalism and support. You made the process so much less intimidating for us. So glad we had you on our side at jury trial."
"You guys are the best. We sure picked a great team!"

Michael, Quincy
Not Guilty - 1st Offense
License Restored Same Day
Client drove over a 12 inch curb and did not stop when police flashed their lights at him. He accelerated to 50 mph with a flat tire. Cop testified he was unsteady on his feet, had an odor of alcohol and his speech was thick and slurred. We immediately filed a motion to preserve the booking video. At trial, attorney Dunn played the video showing him standing normally and speaking normally and argued there was a "disconnect" between the police report and the video. The judge agreed, acquitted him and restored his license immediately.
"Attorney Dunn worked hard for me. I'm Thrilled!"

David, Falmouth
3rd Offense Reduced to 1st
I can't believe how hard attorney Dunn worked for me. First, he got my 5 year refusal suspension overturned. Then he went back to the other courts where I had at least 2 OUIs from 30+ years ago. He found my old records and convinced the judge to treat me as a first offender instead of a third.
Here is what he avoided for me:
A felony conviction
Six months in jail
13 years with no license
13 Year License Loss Reduced to 45 Days

Attorney Dunn Is Here for You

Attorney James Dunn is an OUI / DUI lawyer who proudly and vigorously defends clients in OUI matters across Massachusetts

Contact Attorney Dunn Today

Here for you when you need me 24/7. Call now, no matter what time it is. I will respond immediately: 617-504-4881.

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