Understanding Breath Test Refusal in Massachusetts


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Breath Test Refusal

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.

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