Breath Test Failure & Refusal

Automatic License Suspensions After an Arrest

In Massachusetts, if you are charged with OUI and the police asked you to submit to a breath test, you will likely be facing an immediate loss of your right to operate a motor vehicle. While the police will often ask you to submit to a breath test on a portable breathalyzer by your car, the results of this test cannot be used against you and will not trigger any license suspension. Only results from a breathalyzer at a police station can be used against you in court and can trigger a license suspension. If you took a breath test and the blood alcohol concentration (BAC) was over a 0.08% or higher, your license will be automatically suspended for 30 days by the Registry of Motor Vehicles (RMV), regardless of your prior OUI history.

If you chose not to submit to a breath test, you will face a longer license suspension. Although your right to refuse to submit to a breath test is protected in court, the RMV will automatically suspend your license for at least 180 days. The length of the license suspension will ultimately depend on your prior OUI convictions. Because a prior conviction can dramatically increase your license suspension, it is critical that you hire an attorney to determine the validity of that conviction.

It is also important to keep in mind that there are additional implications for certain types of license holders. If you are under the age of 21, or under the age of 18, you will face additional license suspensions depending on your age at the time of the offense. If you hold a commercial driver’s license, you could face an additional suspension to your CDL depending on whether you chose to submit to a breath test.

Automatic license suspensions are difficult but not impossible to challenge. There are limited methods to fight these types of suspensions, and if you choose to fight the suspension, you must do so quickly. You may also be eligible for a hardship license depending on how your case is resolved in court and your prior OUI history.

What if I Failed a Breath Test?

Breath Test Result of 0.08% BAC or Higher

If you take a breath test and the result is a 0.08% BAC or higher, the RMV will impose a 30 day suspension known as an “administrative per se suspension,” i.e. a breathalyzer failure suspension. During these 30 days, the law prohibits you from obtaining a hardship, work, or Cinderella license. An administrative per se suspension ends after the 30 days have lapsed, or with the disposition of an OUI case, whichever date comes first.

Regardless of whether your OUI case is still pending in court, once the 30 days have passed, you can reinstate your right to drive. Keep in mind that your license will not be automatically reinstated. To reinstate your license, you must request a hearing at the RMV in order for the suspension to be removed. After the hearing, you will also be required to pay a reinstatement fee before your right to operate becomes active again. Not all RMV branches hold hearings, and you can find a local branch that does on the RMV website.

You have a right to appeal the breath test failure suspension and request a hearing in the court in which the underlying OUI charge is pending. G.L. c.90, § 24(l)(g). You must request this hearing within 10 days of the suspension. At this hearing, you have a right to present evidence that your BAC was not actually over the legal limit, which is generally a blood test taken close in time to the offense.

Under the Age of 21

The RMV imposes harsher penalties on drivers charged with OUI who are under the age of 21. The BAC that triggers a license suspension for a driver under 21 is lower than that for an of-age driver. Under G.L. c.90, § 24P, for any operator under the age of 21 and is found to have a BAC of 0.02% or higher, or who refuses to submit to a breath test, the RMV will impose an additional 180 day suspension and an additional 1 year suspension for operators under the age of 18.

If an underage driver has not been previously arrested for or charged with OUI, the RMV will waive the 180 day suspension for those over the age of 18 if the driver enrolls in a Driver Alcohol Education Program (DAEP). The RMV will reduce the suspension to from 1 year to 180 days for drivers under the age of 18 upon enrollment in a DAEP.

What if I Refused a Breath Test?

If you refuse to take a breath test, your right to operate will be suspended based upon how many prior OUI offenses are on your criminal record. The following suspensions will be imposed if you refuse to submit to a breath test:

• No Prior OUI Offenses: 180 days suspension
• 1 Prior OUI Offense: 3 years suspension
• 2 Prior OUI Offenses: 5 years suspension
• 3+ Prior OUI Offenses: Lifetime suspension

Under the Age of 21

As with breath test failure suspensions, the RMV also imposes more severe penalties for drivers under the age of 21 who refuse a breath test. The following suspensions will be imposed for drivers under the age of 21:

• No Prior OUI Offenses: 3 years
• 1 Prior OUI Offense: 3 years
• 2 Prior OUI Offenses: 5 years
• 3+Prior OUI Offenses: Lifetime suspension

Chemical Test Refusal Hearings

If you refused to submit to a breath or blood test after being arrested on the charge of operating under the influence, you have a right to challenge the suspension of your license within 15 days of your refusal.

Chemical test refusal hearings are only conducted at the Boston branch of the RMV, and you can only challenge your suspension based on the following 3 issues pursuant to G.L. c. 90, § 24:

1. Did the police officer have reasonable grounds to believe that you had been operating under the influence?
2. Were you placed under arrest?
3. Did you refuse the chemical test?

If any one of these issues is disproved, the RMV will rescind the suspension. If your license has been suspended for a chemical test refusal, but you were never placed under arrest, you have a very strong challenge the license suspension. Police often mistakenly file paperwork with the RMV triggering this type license suspension when they have issued a citation for OUI rather than making an arrest. Our firm will closely evaluate the facts of your case to determine if you should challenge your suspension and advocate for you before the RMV.

Lawyers With Expertise in License Suspensions

The Massachusetts OUI lawyers at the Bernard Defense Team understand the ins and outs of breath test failure and refusal suspensions. We have incredible success advocating for clients at the RMV for license reinstatement and requests for hardship licenses. If you are faced with a license suspension, it is imperative that you speak to a lawyer who knows how to get back your driving privileges.