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OUI, Breathalyzers And Your License

Posted on : January 29, 2015, By:  Tom Kokonowski, Esq.

What to do with an OUI and the breathalyzers and the choices that you have to make if you are involved with this sort of thing.

The first choice you have is NOT to drive under the influence. If that is how you roll, then you don’t even have to read any further (unless you have a family member or other loved one that needs this information).

For people who are 21 or older, there are very important choices that have to be made if you have been asked out of your vehicle and have just performed the field sobriety tests on the side of the road. The “legal limit” in Massachusetts is .08…It does not take a lot of alcohol to get there. Once you have finished the field sobriety tests, most departments will next offer you a Portable Breath Test (PBT). This is the little contraption the officer will break out of its plastic bag and ask you to blow into as she holds it up yo your mouth, right there, outside of your car. This test is used by law enforcement to bolster their “probable cause” to arrest you. Refusing this breath test or “failing” this breath test does not affect the status of your license, at all. Additionally, because it is not scientifically reliable enough, it cannot be used against you at a trial, whatever the reading is.

The breathalyzer at the police station or barracks is a different story. The police are trained to word your choices in a way that, essentially, scares you into taking it, in my opinion. They will tell you that if you refuse the breath test, your license will automatically be suspended for 180 days. YIKES, right?! Of course I’m going to take it! I can’t be without my license for 6 months! Of course that is a significant concern for everyone.

However, they may not tell you that if you take it and fail it (.08 or higher), your license will automatically be suspended for 30 days and you will have just made it MUCH easier for a prosecutor to convict you of a crime at trial. Your criminal complaint will read that you are charged with OUI of .08% or higher. Essentially, the government only has to prove you were driving and then introduce your breath test result.

In most cases that come to me without a breath test, my goal is to request a jury trial date immediately, well within the 180 days; sometimes only a couple of months after the arrest. That way, your case is disposed of (probably with a not guilty verdict) way before the 6 months is over and you get your license back, barring any unforeseen issues from the RMV.

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