We have all seen a funny video of someone miserably failing field sobriety tests. The walk and turn or the one leg stand provide the most laughs. However, you may not know that these tests are optional. Police officers receive training to make it seem like you have no choice but to take these tests but that isn’t true. There is one test that a driver in almost any state must take and that is a chemical test. This test can be blood, urine, or breath analysis. Breathalyzer refusal will result in an immediate suspension of your license in Massachusetts.
Massachusetts Breathalyzer Refusal
Massachusetts has what is called an implied consent law. This means that anyone with a driver’s license consents to a breathalyzer when there is a suspicion of driving under the influence. If an officer pulls you over and suspects that you are impaired, you must take a chemical test. If you refuse, your license is immediately suspended. The length of the suspension depends on two factors. The first factor is whether or not you have previous DUI convictions. Secondly, a previous breathalyzer refusal will increase your punishment.
Punishments for Breathalyzer Refusal
In Massachusetts breathalyzer refusal results in immediate suspension of your license. Every refusal results in a longer penalty. The punishments are as follows:
- First offense: If you are over 21 and have no convictions for breathalyzer refusal in the last five years the suspension is 180 days. If you are under 21, the license suspension is for up to 3 years.
- Second offense: A second offense within five years will result in a 3-year suspension of driving privileges.
- Third offense: A third offense withing five years will result in a 5-year suspension of driving privileges.
Subsequent refusals can result in up to a lifetime ban of driving privileges. Furthermore, you can fight a breathalyzer refusal charge, but it is difficult. You have to be able to prove one of three things, you weren’t under arrest, the officer didn’t have probable cause, or you gave consent to the test. If you are unable to prove one of these three things your suspension will stand. Defending yourself against a breathalyzer refusal charge is much more difficult that defending yourself against DUI charges.
Should You Submit to Chemical Testing?
First of all, all field sobriety tests are optional. By submitting to field sobriety tests, you are only giving the police more probable cause and hurting your case. Also, the portable breathalyzer devices the police carry with them are not admissible in court, and you don’t have to take them. It is probably a good idea to say no to any roadside tests. While the police may make it seem like these tests are not voluntary, they are.
Implied consent only applies to chemical tests administered either at the police station or a medical facility. If the police arrest you even after you have done everything you can to not give them probable cause it is probably best to submit to the chemical test. There are more valid defenses against a DUI than there are against breathalyzer refusal. Also, refusing to take a portable breath test will give your body more time to process any alcohol that may be in your system. The ride to a police station or medical facility will allow your BAC (blood alcohol content) to decrease. This is important because the higher your BAC is, the harsher the penalties for a DUI will be. Giving yourself as much time before submitting to a chemical test is the best option for your case.
Other Tips to Help Your Case
The best thing you can do for yourself is to remain silent. Admitting to having any alcohol at any time is a bad idea. This instantly gives the police probable cause. Never admit to having anything to drink. The police will tell you that honesty is the best policy, but that is very rarely true. Exercise your right to remain silent by saying, out loud; you are exercising your fifth amendment rights. Doing everything you can from the start can greatly impact your case.
Consequently, you will also want to immediately consult with a DUI attorney. Tell your attorney everything you can remember, no detail is too small. An attorney can explain all of your options and help you figure out how you want to handle your case. A qualified DUI attorney can help you determine the best way to proceed with your DUI or chemical test refusal case. Contact James G. DeGiacomo, Boston DUI attorney today and plan your defense. You will be glad you did.