Should You Take the Breath Test If Pulled Over for OUI in Massachusetts?

Getting pulled over on suspicion of Operating Under the Influence (OUI) is a stressful experience. One of the biggest decisions you’ll face is whether to take the breath test. In Massachusetts, the answer isn’t always straightforward, as there are legal and administrative consequences no matter what you choose.

Here’s what you need to know about taking or refusing the breath test in Massachusetts.

Two Types of Breath Tests

In Massachusetts, police may ask you to take a breath test at two different points:

Portable Breath Test (PBT) at the Roadside:

• This is a small, handheld device used during a traffic stop.
• Results from this test are NOT admissible in court — they are only used to establish probable cause for arrest.
• Refusing the roadside breath test will NOT result in penalties.
• If you believe the result might help you, you can take it, but it is not required.

Station Breathalyzer Test

• This is the official breath test given at the police station.
• Unlike the roadside test, refusing this test has consequences, including at least a 180-day license suspension (and you will have to pay a reinstatement fee).
• If you blow a 0.08% or higher, the RMV will immediately suspend your license for 30 days (and you will have to pay a reinstatement fee).
• If you blow a 0.12% or higher, you may also be required to complete an alcohol education program.

If You Take the Breath Test and Fail

It’s important to remember that a failed breath test does not guarantee a conviction. Your attorney may be able to challenge the results through:

• Filing a Motion to Suppress – If police failed to follow required procedures (e.g., improper machine calibration, failure to observe you before testing), your attorney may argue the results should be thrown out.
• Examining Calibration Records – The breathalyzer must be properly maintained and tested for accuracy. If records show irregularities, the results may be unreliable.

Additionally, Massachusetts courts have scrutinized the breathalyzer's software and calibration for years, with new challenges arising regularly.

If You Refuse the Breath Test

Massachusetts is an implied consent state, meaning that by holding a driver’s license, you have already agreed to submit to a breath test. Refusing the test leads to an automatic license suspension:

However, refusing the breath test cannot be used as evidence against you in a criminal trial. This means the prosecution cannot argue that you refused because you knew you were guilty.

What About Field Sobriety Tests?

You do not have to take any field sobriety tests in Massachusetts, and refusing them cannot be held against you in court. These tests, known as “divided attention” exercises, are designed to be difficult — even for sober individuals.

Final Thoughts: Should You Take the Breath Test?

The decision depends on your situation:

• If you haven’t been drinking, taking the test may clear you quickly.
• If you have been drinking, refusing the test prevents the prosecution from using a failed result against you, but it results in an automatic license suspension.
• If you fear a high BAC reading, refusing the test may help your chances in court, but you should weigh this against the potential loss of your license.

Ultimately, if you are arrested for OUI, consulting an experienced attorney as soon as possible is critical. A skilled lawyer can evaluate your case, challenge the evidence, and work toward the best possible outcome.

Feel free to reach out with any questions – I’m here to help.