"Should I Take a Breathalyzer Test?"

February 2, 2012
By Parker Scheer LLP on February 2, 2012 11:22 AM |

By Attorney Francis T. O'Brien, Jr.

The question that I am most often asked regarding OUI/DWI/Drunk Driving cases is: Should I take a breathalyzer test (BT), if I am arrested? It may be that if you are reading this article you have already been arrested and confronted with that quandary, made that decision and are now the defendant in a case, with or without BT evidence. In that case my comments might seem moot. However, it is important to remember that a skilled attorney who specializes in OUI/DWI/Drunk Driving cases can effectively represent you regardless of whether you took the BT or not. Do not waste energy dwelling on what you might have or should have done. As your attorney I will encourage you to focus on what the facts are, regardless of whether they seem good or bad to you, and move forward with an aggressive defense. I do have an opinion on the issue, however.

I believe that a person who is under arrest for operating under the influence of alcohol in Massachusetts should not submit to a breathalyzer test. There are a number of reasons for this opinion. First and foremost is the fact that a BT result is a concrete piece of evidence that will be offered against you at trial. If you register a score of .08 or above, that score alone is enough to convict you. This places your attorney in a position of having to challenge the accuracy of the BT score in order to effectively defend you. This will often result in increased costs to you as your attorney may need to utilize expert witnesses and/or pretrial motions and hearings to challenge the BT. In a sense, you have created a critical piece of evidence against yourself, which could have been avoided simply by declining to submit to the test. While there are many strategies that a skilled and experienced attorney can use to challenge the BT, you can spare yourself significant time, expense and stress by refusing.

Going hand in hand with instinctively not wanting to create physical evidence against oneself is the reality that there are many factors which can contribute to an inaccurate BT score. It is less than comforting to know that your fate lies in the hands of an inanimate object, a breathalyzer machine, and in the hands of the police officer operating the machine. However, by law, the test results are admissible, flawed as they may be. Therefore, it is my opinion that a person who believes that his or her blood alcohol level is below the legal limit should decline the BT test and immediately upon release from police custody go to the closest medical facility and have blood drawn and tested by trained medical personnel. This is a much fairer and more accurate test, not prone to mechanical and human error like the breathalyzer is.

A person under arrest will be advised that if they refuse to submit to a breathalyzer test they will lose their driver's license for a minimum of 180 days, but if they take the test and fail, they will only lose their license for 30 days. This sounds tempting and police will often apply subtle or not so subtle pressure to take the BT, saying things such as "in the worst case if you take the test and fail, you lose your license for 30 days and you can get a hardship license, but if you refuse you lose it for six months, with no possibility for a hardship license. What's the harm?" Unfortunately, there is significant harm in taking a BT. If the person registers a score of .08 or above, he or she has now placed him or herself in a position where, as discussed above, the defense attorney must devise a strategy in order to challenge this self created evidence. If the person refuses the BT, the defense attorney can focus the defense efforts on challenging the testimony of the police officers.

Police testimony is typically opinion evidence. In other words, the police officer will testify as to his observations of the defendant's driving, demeanor, performance on field sobriety tests, etc., and conclude that based upon these observations, the officer is of the opinion that the defendant's ability to operate was impaired by alcohol. However, opinion evidence may be aggressively challenged by an experienced OUI/DWI/Drunk Driving attorney. Very often defendants do not agree with the version of events offered by the police and a skilled attorney can expose flaws in the testimony of the police. If a defendant does not submit to a breathalyzer test then his or her defense can focus on challenging testimonial evidence.

What very few defendants realize, because the police will never advise them, is that in most cases involving a BT refusal, where the defendant is subsequently found not guilty at trial, the license suspension triggered by the refusal will be vacated and the person's right to operate will be immediately reinstated. So while the police may make it sound tempting to take a BT, with a 30 day suspension for a failed score, versus a 180 day suspension for refusal, the defendant is better served by refusing the BT.

Percentage wise, although a skilled attorney can handle any fact pattern, there are far more defendants who are found not guilty in cases where there is no BT evidence. And most often those defendants will have the remainder of their refusal suspension wiped out. Therefore, in my opinion, a person who is placed under arrest for operating under the influence of alcohol should refuse to submit to a breathalyzer.

If you or a family member has been charged with criminal activity, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers.

Please also see MELANIE'S LAW - MA OUI Penalties, Parker | Scheer Criminal Defense Lawyer Responds to Boston Globe 3-Part OUI Feature and Winthrop Massachuestts Man Charged with 8th DUI for related Boston Criminal Defense posts and comments by Attorney Tofani.