The short answer is that it depends on how sure you are you can pass the breathalyzer. If you are positive you can pass, take the breath test, but if you’re not absolutely sure, it’s usually best to refuse the breathalyzer.
Some websites may tell you to always refuse the breathalyzer, but this isn’t always true. If you can pass, refusing the breathalyzer just means an unnecessary driver’s license suspension.
It’s also important to remember that you must be lawfully arrested to be required to blow into a breathalyzer, which is at the station, or do any blood tests. If you have not been lawfully arrested for DUI and are then required to blow into the breathalyzer, this is not admissible against you. You must also be on a public road.
Here are the basic facts that you should consider when thinking about whether to blow into the breathalyzer test.
Refusing to Blow Means a Driver’s License Suspension
Refusing to blow into a breathalyzer carries a mandatory driver’s license suspension. Depending on how many prior OUIs you have, this could range from a few months to a few years to lifetime.
If You Blow Over .08, You are Presumed Guilty of DUI
Massachusetts DUI law presumes you’re guilty of DUI if you have over .08 blood-alcohol in your blood, so blowing over that will almost guarantee a conviction for driving under the influence, meaning you have little chance of fighting it.
In Massachusetts, Police Cannot Draw Your Blood Without Your Consent
According to the Supreme Judicial Court, police in Massachusetts cannot draw your blood without your consent, even if they have a warrant. This was decided in November 2020.
A First-Time DUI Offender can get a CWOF or 24D
If you have been arrested for DUI in Massachusetts, you are generally not looking at jail time in the typical case. Generally, the prosecutor will offer a CWOF or the 24D program. Any plea to an OUI will also result in an additional driver’s license suspension.
The decision of whether to blow into the breathalyzer is much more complicated than many people make it out to be. You have to consider whether it’s more important to keep your driver’s license or be able to fight the DUI later. If you have been charged with OUI, you need an experienced attorney to help. Call or text me today (617) 295-7500, and I’d be glad to help.
