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IT'S THE LAW: Can I be Charged With OUI or Drunk Driving Without Taking A Breathalyzer In Massachusetts?

Jan 12, 2021 08:32AM ● By Atty. Paul King

Atty. Paul King

 The short answer is “yes”, although it will usually be much more difficult for the prosecution to make its case than if the results of a breathalyzer test are available.

Breathalyzer tests are often the most incriminating evidence for individuals charged with operating under the influence (OUI) in Massachusetts.  Because prosecutors and law enforcement officers rely heavily on blood-alcohol readings, refusing to take a test can provide significant leverage to a defendant at trial.

However, it is essential to recognize that it is still possible to be prosecuted and convicted for an OUI, even when a breathalyzer or other chemical tests have not been conducted.  And, as discussed below, the refusal to take a breathalyzer test can also result in immediate license suspension.

What Kinds of Evidence May Be Used to Support an OUI Prosecution?

Field sobriety testing, officer testimony, videos, and other circumstantial evidence can be utilized to substantiate drunk driving charges.  Because it is possible to be convicted without a breathalyzer, it can be crucial to obtain the representation of an experienced Massachusetts drunk driving attorney for all types of OUI cases.

For almost two decades, I have successfully defended countless clients facing criminal charges, including those facing OUI / drunk driving charges.  With this experience, I know how to argue for reduced or dismissed charges and seeking to exclude evidence that was improperly obtained (including breathalyzer tests), and will fight tenaciously in seeking to help you avoid a conviction and the potential associated fines, license suspensions, jail time, and black mark on your criminal record that could impair seeking future employment. 

Call my office today at 978-851-5145 to schedule a free consultation to learn how I can help with your OUI charge! 

How High Does A Blood Alcohol Level Have to Be for an OUI?

Massachusetts prohibits individuals from driving in public places with a blood alcohol concentration (BAC) of .08% or more or while under the influence of intoxicating liquors, marijuana, narcotics, or other drugs.  An individual is viewed to be per se in violation of the law if their blood alcohol concentration is .08%.  However, the government will often times still prosecute an individual who has a blood alcohol concentration level of at least .06, arguing that the person was still impaired or under the influence. 

Individuals are considered “under the influence” if their ability to operate a vehicle is diminished by consuming these substances, regardless of whether a vehicle is moving.  This means that an intoxicated person can be charged with OUI for sitting in the driver’s seat of a parked, running car.  Generally speaking, if the keys are in the ignition, you can be charged with an OUI. 

What are the Penalties for OUI in Massachusetts?

Penalties for OUI depend on the number of prior convictions on a driver’s record and the circumstances surrounding the charge.  Penalties can include the following: 

  1. First Offense:
    1. Up to 2.5 years of jail time
    2. $500 to $5,000 fine
    3. Up to 1-year license revocation
  1. Second Offense:
    1. 60 days to 1.5 years in jail (minimum 30 days served)
    2. $500 to $10,000 fine
    3. 2-year license revocation
  1. Third Offense:
    1. 180 days to 5 years in prison (minimum 150 days served)
    2. $1,000 to $15,000 fine
    3. 8-year license revocation

In some instances, it may be possible for first or second OUI offenders to avoid the standard penalties by entering into a probation agreement.  If you are facing a first or second conviction, I can explain your legal options, including alternative programs that may help avoid steep penalties.  

Do I Have to Take a Breathalyzer Test?

While field sobriety tests are optional, breath analysis (also referred to as breathalyzer tests) are not.  Massachusetts has an implied consent law, meaning that drivers with a license automatically consent to breathalyzer testing if an officer suspects they are driving under the influence.  A refusal to take a breathalyzer test results in an immediate license suspension.

Although individuals are required to take a breathalyzer test, a refusal by a person to take such a test cannot be used at trial to prove intoxication in Massachusetts.  However, other evidence can be introduced at trial by the prosecution in seeking to prove intoxication, such as video or testimony concerning erratic driving, slurred speech, the smell of alcohol, and the inability of a person to be able to maintain normal balance when standing or walking.  As a result, a person who fails to submit to a breathalyzer test can possibly face punishment from both the failure to take such test, as well as an OUI conviction.

Can I Get My License Back if It Was Suspended?

Under the Massachusetts General Laws,[1] it is possible to apply for the restoration of a driver’s license (except in the case of a lifetime suspension).    The amount of time that must pass before you potentially qualify for a partial or full license restoration depends on a number of factors.  These factors include whether you submitted to the breathalyzer, the disposition your most recent OUI charge received, and the amount of previous OUIs that you have been convicted of.

If a driver refuses a breathalyzer but is acquitted of OUI charges, he or she should immediately petition for license reinstatement.  Under Massachusetts General Laws chapter 90, section 24(1)(f)(1), a defendant may directly, upon entry of a not guilty verdict or dismissal, apply for and be granted a hearing to request restoration of a license.  Absent the individual having pending alcohol-related charges or being a danger to public safety, judges will typically reinstate a suspended license.

If your charges are dismissed, it is critical to move for a license reinstatement immediately, as the law does not allow drivers to petition later.  If I am retained to represent you, not only will I fight tenaciously in seeking reduced or dismissed charges, but I can assist in ensuring that critical reinstatement deadlines are not missed. 

If You Are Charged with an OUI, Call Me to Schedule a Free Consultation

In nearly every OUI case, hiring a seasoned attorney will provide the best chances to avoid a conviction or obtain reduced charges and penalties.  While it is much harder for a prosecutor to prove drunk driving without breathalyzer results, it is still possible to substantiate a case with other circumstantial evidence.

If your facing an OUI charge, I would invite you to call me to learn how I can help you. 


[1] Massachusetts General Laws chapter 90, section 24(1)(c).

Paul M. King is the sole practitioner of the Law Office of Paul M. King, P.C.. Since forming the firm in 2002, Paul’s practice has been focused on provided affordable, dedicated legal representation to clients throughout Massachusetts, New Hampshire, and Maine. He can be reached at www.kingatlaw.com or by calling 978-851-5145.

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